HomeMy WebLinkAbout04132000 Ag Wksp
.
.
.
CITY OF PORT TOWNSEND
PLANNING COMMISSION AGENDA
City Councll Chambers, 7:00 pm
April 13, 2000
I. Call to Order
II. Roll Call
III. Acceptance of Agenda
IV. Approval of Minutes: March 9, 2000
V. Unfinished Business
VI. New Business
Workshop - City Attorney -
Update on City Ordinances in the drafting process
A Staff Presentation -John Watts
B. Commission Discussion
VII. Upcoming Meetings: April 27, 2000
VIII. Communications
IX. Adjournment
.
.
.
PLANNING COMMISSION
(April 13, 2000)
Summary of Topics - City Attorney Presentation
A.
Planning Commission Functions
1. Development permit applications: Recommendation to Council,
following public hearing, on quasi-judicial development permit applications.
Listed as Type III applications in PTMC 20.01.040: subdivisions, major CUPs,
major variances, shoreline management permits, site-specific rezones, PUDs. Council by
resolution may assign any Type III application to Hearing Examiner (if Council
determines matter involves potential appearance of fairness issues, or involves complex
factual matter).
2. Legislative land use decisions: Recommendation to Council, following
public hearing, on legislative land use decisions.
Listed as Type V actions in PTMC 20.01.040: comprehensive plan amendments,
development regulations, zoning text and map amendments, SMP amendments, and other
land use plans (but only certain utility plans if referred by the Council)
B. Difference between quasi-judicial and legislative actions
1. Quasi-judicial actions: "Quasi" is Latin meaning "as if' or "analogous
to." "Quasi-judicial actions" means actions that are like a judicial action.
RCW 42.36.010 defines quasi-judicial actions as those actions that determine,
based on facts applied to the law, the legal rights, duties, or privileges of specific parties
in a hearing or other contested case proceeding.
Principal Characteristics:
· Generally have a greater impact on specific individuals
· Proceedings are aimed at a fact-based decision between two distinct
alternatives, i.e., pro and con
· The decision involves policy applications (rather than policy setting).
2. Legislative actions. By contrast, a matter is legislative (and not subject to
statutes and rules governing quasi-judicial actions) ifit relates to general policy matters,
or actions affecting the City as a whole, or that have area wide significance. Legislative
actions involve policy setting. Quasi-judicial proceedings involve policy application.
1
.
.
.
By'law, the Appearance of Fairness Doctrine does not apply to the following actions
(RCW 42.36.010):
· Adoption, amendment, or revision of comprehensive plan
· Adoption of an area-wide zoning ordinance
· Adoption of area-wide zoning amendments
Even though a zoning amendment might affect specific individuals, if it applies to an
entire zoning district, it will be considered legislative, not quasi-judicial. As the court
stated in Raynes v. Leavenworth (Washington Supreme Court, 1992):
"The fact that the solution chosen has a high impact on a few people does not alter the
fundamental nature of the decision."
3. A Comprehensive Plan Amendment or District Zoning Change May
be Quasi-Judicial. While state law excludes comprehensive plan adoption or
amendment from application of the Appearance of Fairness Doctrine, if the amendment
applies only to a specific parcel of property, then (to avoid any Appearance of Fairness
question) the action should be considered under the rules governing a quasi-judicial
action.
C. Appearance of Fairness Doctrine
1. What does the appearance of fairness doctrine require? The
Appearance of Fairness Doctrine addresses bias, benefit, and fairness.
(1) Bias and Benefit of Decision Maker
The Appearance of Fairness Doctrine provides the decision maker may not:
· Prejudge the outcome (prejudgment occurs where a decision maker announces
before a hearing that opponents are wasting their time
· Have personal bias (bias found where decision maker was associated with
organization that publicly supported one of the parties)
· Have a financial interest (financial interest found where a decision maker was a
mortgage holder on property involved)
(2) Fairness of Quasi-judicial Proceedings.
The appearance of fairness doctrine provides quasi-judicial proceedings must
have procedural safeguards that assure the appearance, as well as, actual fairness.
Safeguards include:
· Adequate notice
· Opportunity to be heard
· Right to cross examine complex cases
2
.
· Verbatim record
· No ex parte contacts (subject to RCW 42.36.060 - below)
· Decision based on facts presented at hearing (A decision maker may not gather
his or her own facts, for example, by viewing the property or concluding a
parking problem exists based on the decision maker's past experience, If the
decision maker has direct knowledge of specific facts, then the decision maker
should enter that information on the record by publicly announcing the facts at the
hearing. A decision maker need not enter into the record general information (for
example, that the decision maker has driven by the property)
2. Ex parte contacts are prohibited, unless entered into the record of the
proceedings. Ex parte means "one-sided." Ex parte contact involves a one-sided
discussion between a decision maker and a proponent or opponent of an application
without providing an opportunity to others to respond and state their case. RCW
42.36.060 provides:
RCW 42.36.060 Ouasi-iudicial Proceedings - Ex Parte Communications
Prohibited - Exceptions: During the pendency of any quasi-judicial proceeding,
no member of a decision-making body may engage in ex parte communications
with opponents or proponents with respect to the proposal which is the subject
of the proceeding unless that person:
.
(1) Places on the record the substance of any written or oral ex parte
communication concerning the decision or action; and
(2) Provides that a public announcement of the content of the
communication and of the parties' rights to rebut the substance of the
communication shall be made at each hearing where action is considered or
taken on the subject to which the communication is related. This prohibition
does not preclude a member of a decision-making body from seeking in a
public hearing specific information or data from such parties relative to the
decision if both the request and the results are a part of the record. Nor does
such prohibition preclude correspondence between a citizen and his or her
elected official if any such correspondence is made a party of the record
when it pertains to the subject matter of a quasi-judicial proceeding,
3. Ex Parte Communication Includes Discussion With Other Decision
Makers Outside of Public Hearing. As stated by The Appearance of Fairness Doctrine
in Washington State (Municipal Research and Service Center, 1995, p. 18):
If a situation occurs in which communication with a decision maker
occurs outside of the City's hearing process, the decision maker should
place the substance of the written or oral communication on the record,
make a public announcement of the content of the communication, and
allow persons to rebut the substance of the communication. Failure to
.
3
·
follow these steps could result in an overturning of the council's
decision, should it ever be challenged in court.
4. When is a Hearing "Pending" So That the Appearance of Fairness
Doctrine Applies. RCW 42,36 does not directly answer at what point a hearing is
"pending." Generally, if no application or appeal is filed, no hearing is pending, and a
Councilmember could meet with a developer, proponents, or opponents. To avoid
Appearance of Fairness challenges, if a decision maker knows that a matter will likely
result in a quasi-judicial hearing before the body, the decision maker should follow the
Appearance of Fairness Doctrine requirements, including publicly announcing at the
hearing the content of any communication (paragraph 2).
s. Appearance of Fairness Doctrine Can Apply to Legislative Actions.
RCW 42.36.110 states the Appearance of Fairness Doctrine allows anyone to challenge
any land use decision (including legislative actions "where actual violations of an
individual's right to a fair hearing can be demonstrated."). Ifprejudgment, partiality, or
personal interest in the outcome were shown in a legislative action, a basis for challenge
exists.
6.
project?
May decision maker meet with developer prior to an application for a
Yes, if no application has been filed.
·
7. What if decision maker owns property in the area proposed for a
rezone. It would violate the appearance of fairness doctrine if the decision maker who
owns property in the area of a rezone votes, This does not apply if the rezone action is a
legislative one.
In Buell v. Bremerton (Wn. Supreme Court, 1972), Planning Commission member
who owned property within 200 feet of the property to be rezoned was enough to
disqualify the member for appearance of unfairness, Several principals were stated; (10 it
is necessary only to show an interest that might be affected; (2) a possibility of interest by
an increase in the value of the member's property by reason of the rezone was enough to
create an appearance of unfairness; (3) the fact that he may not have voted or his vote
wasn't needed for the decision was enough; and (4) the fact the Commission only
recommends to the Council is irrelevant.
In Byers v. Bd ofClallam Co. Comm'rs (Wn. Supreme court, 1974), the fact a
member owned property 10 to 15 miles away form a rezone area was not enough to
disqualify, The case was distinguished form Buell based on distance and the failure to
show actual benefit to the member's property,
·
8. Maya disqualified decision maker discuss the application with other
planning commission members? No. In Hayden v. Port Townsend (Wn. Court of
Appeals, 1981), planning commission chair, who was also branch manager ofS&L which
had an option to purchase the site in question, stepped down as chair, but participated in
the hearing as an advocate.
4
·
9. Professional or business association between Commissioner and
applicant disqualifies Commissioner from participating in matter before
Commission involving the applicant. In Hayden, above, it was improper for Chair of
S&L to participate in a rezone request of the S&L. In Save v. Bothell (Wn. Supreme
Court, 1978), Planning Commission members were officers of the Chamber of
Commerce which supported the rezone request. This violated the appearance of fairness
doctrine.
10. If a decision maker is disqualified from participation on appearance
of fairness grounds and discusses the issue with another decision maker, may the
second decision maker still participate and vote? Yes, so long as the second decision
maker discloses the conversation n the record.
11. What is the Penalty for Violation of the Appearance of Fairness
Doctrine? The penalty for violation of the Appearance of Fairness Doctrine is reversal
and remand by the Superior Court. The decision is void and remanded to the Council to
make a decision in compliance with the Doctrine.
D. Public Hearings and Decision.
·
1. Deliberation and Discussion Should be in Relation to Approval
Criteria. During deliberation, pros and cons, should be thoroughly discussed, in relation
to the facts and the approval criteria to be applied (as defined by relevant codes and
policy provisions). (planning Commission Public Hearing Procedures (pCPHP) 2,17)
"The general statement in the Council's resolution denying the permit, that
traffic noise and aesthetic impacts could not be mitigated and that severe
safety issues were presented, is not a finding, but a conclusion.»
MaranathaMiningv. Pierce Co. (Wn. Court of Appeals, 1990)
"The only expert testimony in the record shows that the mitigation
measures would prevent groundwater contamination. . . , The only
opposing evidence was generalized complaints from displeased citizens,
Community displeasure cannot be the basis of a permit denial."
MaranathaMiningv. Pierce Co. (Wn. Court of Appeals, 1990)
"It is apparent that the Council gave little consideration to the merits of
Marantha's application, and that it disregarded the facts set forth in the
hearing Examiner's findings. The Council seems to have heard clearly the
citizen complaints and the comments of one of its own members while
disregarding the record, We cannot escape the conclusion, in view of the
evidence, that the Council based its decision on community displeasure
and not on reasons backed by policies and standards as the law requires."
MaranathaMiningv. Pierce Co. (Wn. Court of Appeals, 1990)
·
5
·
"Further, if the Council is concerned with Marantha's ability to comply
with the 31 conditions that the examiner placed on the permit, the proper
remedy is to monitor the operation (for which the conditions provide) and
to withdraw the permit in the event of noncompliance. It is improper to
deny the permit to an applicant who, throughout the application process,
has demonstrated a willingness to mitigate any and every legitimate
problem." MaranathaMiningv. Pierce Co. (Wn. Court of Appeals, 1990)
"Occasionally, the audience interrupted the proceedings with emotional
outbursts concerning the safety of school children and the degree which
the project would diminish the quality of life of area residents. Finally,
one of the Council members spoke out about her knowledge of the site,
her personal feelings that the permit should be denied, and her concerns
about Marantha's ability to comply with the conditions." "The Supreme
Court has soundly criticized such comments by board or council members
when the testimony at the public hearing was closed but before the
decision was made. MaranathaMiningv. Pierce Co. (Wn. Court of
Appeals, 1990), citing Nagatani Bros. v. Skagit Co, (Wn. Supreme Court,
1987).
2. Credibility Findings. If there is inconsistent testimony, Commission
should make a record of why it accepts one side over another. This may be based on
credibility of witness. (pCPHP 2.18)
·
3.
Decision.
· Decision must be b3;sed on the record
· There must be findings of fact to support the decision
· The criteria in the ordinance must be reviewed
· If the decision is a denial, there must be a reason based on the criteria.
· If there are conditions, they must be clear and understandable.
E. Open Public Meetings Act.
Because there is a risk of legal challenge, decision makers need to exercise caution in
discussing official business outside of public meetings, particularly if the discussions take
place with a total number of decision makers that constitute a quorum (whether they are
all present at a single time). In a recent Clark Co. (Washington) case, a Superior Court
ruled in 1999 that email communications constituted a "meeting." Three members
constituting a quorum violated the Act when they discussed future board actions and
agenda issues by email. Although the ruling is on appeal and is not binding precedent,
the ruling demonstrates how broadly the courts can interpret the Act. As declared by the
legislature, the Act "shall be liberally construed." RCW 42.30.910.
·
6
.
F. Ethics and Appearance of Fairness
The basis of both the Appearance of Fairness Doctrine (a form of special ethical rules for
quasi-judicial matters) and general ethical standards is to foster and maintain the highest
level of confidence and integrity in government.
.
1. An Appearance of Fairness Checklist.
·
Be alert to the possibility that an action is a quasi-judicial action (when in
doubt, ask Counsel);
Avoid discussion of matters subject to pending or upcoming quasi-judicial
proceedings;
When such discussion cannot be avoided, record any discussion and
preserve any documents received that discuss or are related to a quasi-
judicial proceeding and enter them in the record at the hearing;
Allow all parties proposing or opposing a matter that is the subj ect of a
quasi-judicial proceeding the opportunity to be heard;
Disclose any pecuniary interest in a matter that is the subject of a quasi-
judicial proceeding, before the hearing begins;
Disclose any basis for bias or prejudgment of a matter that is the subject of
a quasi-judicial proceeding, before the hearing begins; and
If you have a pecuniary interest, bias or prejudgment of the matter at issue
and the entity can proceed without you, disqualify yourself from the quasi-
judicial proceeding, before the hearing begins.
·
·
·
·
·
·
2. Ethics Laws. Where the Appearance of Fairness Doctrine provides
ethical standards for conduct of public officers when they act as quasi-judicial decision
makers, general ethical standards govern public officials and employees in all aspects of
their duties. Like the Appearance of Fairness Doctrine, ethical standards foster or
promote confidence and integrity in government.
Existing law proscribes:
a. Prohibited interest in contracts made by, through, or under the officer's or
employee's direction. The general rule is that contracts which the officer or employee
has an interest in are prohibited. The law
(1) Prohibits direct financial interest in matters on which one acts
(e.g., municipal officers and employees generally may not contract with themselves to
perform work for the City),
(2) Prohibits conflict with official duties (financial benefit from a
contract places the officers' personal interest in conflict with official duties).
(3) Prohibits improper use of position (public officers and employees
may not use their position to achieve a private gain).
.
7
.
(4) Prohibits use of public facilities for personal gain.
b. Soliciting or accepting anything of value for a matter connected with or
related to official services. Generally, solicitation or acceptance of compensation or
anything of value for a matter connected with or related to the officers services is
prohibited.
C. Disclosure of confidential information. No municipal officer or employee
may disclose confidential information gained by reason of his or her position, nor use
such information for his or her personal gain or benefit.
.
3.
An Ethics Checklist.
Be alert to any decision that involve bias or benefit, such decision may be
the subject of state or local regulation.
If you will sit in judgment of the legal rights, duties and privileges of
specific parties in a hearing or other contested case proceeding, review the
checklist for quasi-judicial decision makers.
If you will perform a legislative or administrative function, disqualify
yourself from acting on any matter in which you have a financial interest,
direct or indirect.
Before acting on a matter in which you or someone else might realize a
gain, beyond compensation from the City, ask whether the gain can only
be achieved by using the influence or associations of your office. If the
answer is yes, it is likely that you will use your position to achieve a
private gain for yourself or another, in violation of standards of conduct.
Consider all of the resources at your disposal the property of the public
given to you in trust to be used only to conduct the public's business, If a
proposed use is not primarily to conduct the public's business, it is
probably a prohibited use.
When offered something of value, from someone other than the
jurisdiction, do not accept it if it is, or could be construed to be: (a)
payment for performing your official duties; (b) payment to induce you to
perform your official duties; or ( c) an exchange for performing your
official duties in a special way. All are prohibited.
Do not disclose or use any information that could not be obtained by a
member of the public, on request.
·
·
·
·
·
·
·
Adhering to general ethical standards and the specific requirements of the Appearance of
Fairness Doctrine for quasi-judicial public hearings promotes integrity and public
confidence in government. When followed, challenges to decisions or actions taken by
the City will be less likely. Ifthere is a challenge, then the focus of the challenge,
appropriately, will more likely be on the merits of the decision and not on procedural or
ethical matters.
.
JW 04/13/2000 PlanComm41300.doc
8