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8.e 1 Policy on site visits and ex parte communications Staff Report Date of Meeting: August 16, 2016 To: City Council From: Neil Soltis, Administrator Re: Site Visit Guidelines and Ex Parte Communications Background: There are occasions when the Planning Commission or City Council needs to act in a quasi-judicial capacity. Just as in a court trial, in a quasi-judicial hearing the decision should be based solely on information presented at the hearing. In 2011, the Planning Commission adopted guidelines for site visits; however, the guidelines do not address concerns about the conduct of the site visits or what information gathered at the site visit or through other contacts can be used in formulating a decision at a quasi-judicial hearing. With input from legal counsel, the site visit policy adopted by the Planning Commission has been updated and the Planning Commission took action to approve the revised guidelines at its August 2, 2016 meeting. Issue: Should the City Council adopt the guidelines for site visits and ex parte communications. Details / Discussion: Jed Burkett, the land use attorney at the League of Minnesota Cities provided the following information regarding site visits. Copies of the referenced documents follow this staff report. In the planning and zoning context, some cities use site visits by planning commissioners or by city staff to gather information before making a decision or recommendation on a land use application. Although site visits may work well in some communities, a city should carefully consider how site visits comport with due process and open meeting concerns. When decision- makers have meetings with, or receive information from only one side of a controversy it may create an impression that government is operating in secret and is not providing a fair process for all parties. I’ve attached an article on ex parte communications. It is because of ex parte concerns, that some cities have a policy that site visits by planning commissioners or councilmembers be done as a group and noticed as a public meeting. This allows the public to attend and observe. Site visits by individual members on their own can be problematic because the public is not able to witness information the member receives. For this reason, some cities have policies that disallow individual visits, or else require that the members disclose those visits and any information received at the next public meeting. It is not obvious to me why the planning commission would need to conduct a site visit for all or even any applications. I think a city generally speaking can by ordinance put the burden on the applicant to provide all necessary information about site condition so as to allow the city to properly evaluate the application against ordinance standards. In those circumstances where there may be a need for a site inspection before a decision, I would think that it could be accomplished by city staff who then could report back to the planning commission. The Municipal Research and Services Center (MRSC) of Washington, which works with local government in the State of Washington, has some guidance on their web site that makes a lot of sense to me: 1. Is it permissible for board of adjustment members to independently visit sites under consideration? Reviewed: 08/11 Although there is no specific statutory prohibition on site visits, this practice should be discouraged because it raises due process and basic fairness concerns. Site visits are contrary to the basic concept that members of a quasi-judicial body should base their decision solely on information presented at the hearing on the matter. This helps to ensure a basic sense of fairness to such a proceeding, despite the fact that each board member comes to the proceeding with his or her own unique knowledge and biases. Site visitations are not specifically prohibited in the codification of the appearance of fairness doctrine in ch. 42.36 RCW. Ex parte communications with opponents or proponents of a particular project (at a project site or otherwise) are, however, prohib ited unless the substance of any such communication is placed on the record and a public announcement of the content of the communication and of the parties' right to rebut the substance of the communication is made at each hearing involving the particular project. See RCW 42.36.060. Further, a site visit by a quorum of the board (or, in some circumstances, less than a quorum) would constitute a violation of the Open Public Meetings Act, absent the visit taking place in the context of a public meeting. The most efficient way of providing site information to board members is to have a staff member report on the site, with photographs and diagrams, at a hearing. If the board deems it necessary to make a site visit, it should do so in the course of a public hearing, with opponents and proponents and members of the public entitled and invited to attend. It is also significant to note that the League of Minnesota Cities provides the liability coverage for the City. If the Planning Commission does not alter its guidelines for site visits or ex parte communications, further conversations should be held with the League to ensure the City will not run afoul of any liability coverage issues. Options:  Adopt the revised guidelines  Modify the guidelines  Take no action on the guidelines Recommendation: Adopt the guidelines as presented Scandia City Council Scandia Planning Commission Site Visit Guidelines Adopted May 3, 2011 Amended August 2, 2016 (Planning Commission) Amended (City Council) Overarching Goal of Site Visits: To ensure that Planning Commissioners, representative of the citizens of the City of Scandia and acting as advisors to the Mayor and City Council, are as fully informed as possible before making decisions regarding: 1. Comprehensive Plan amendments 2. Zoning Ordinance amendments 3. Rezoning 4. Interim or Conditional Use Permits 5. Variances 6. Site Plan Reviews 7. Subdivisions, major and minor, including Open Space Conservation Subdivisions and Planned Unit Developments Purpose of Site Visits: 1. Gather information for issues pending before the Planning Commission, through first-hand observation of the site, which includes topography, land cover, existing structures, access, screening, and any other visual characteristic that may help the Planning Commission’s evaluation of a land use application. 2. Subject to “Ex Parte Communication,” below, a site visit also gives a developer, real property owner, or land use applicant the opportunity to present information and answer questions regarding the site, any proposed changes, and the physical relationship any changes may have to the surrounding area. Procedures: 1. The Planning Commission Chair will determine which site visits are needed and notify the City Administrator by the Wednesday before the monthly Planning Commission meeting. 2. The City Administrator will post site(s) to be visited at least three days before the scheduled visits – the Thursday before the monthly Planning Commission meeting during CST and the Friday before during DST. 3. Scheduled visits will normally be the day of the monthly Planning Commission meeting during Daylight Savings Time (Tuesday at 5:30 p.m.) or the Sunday before the monthly Planning Commission meeting during Standard Time, the time of day to be determined by the Chair and posted accordingly by the City Administrator. 4. The date and time of the site visit meeting may be changed by the Chair if 3 days posted notice and written notice to Commission members are given, as well as adequate posting being made by the City Administrator, pursuant to the Minnesota Open Meeting Law. 5. Planning Commission members will meet in the Community Center parking lot, 14727 209th Street North, at the time noted in the posting and then drive to the site(s). 6. Interested citizens may meet at the Community Center at that same time and drive along with Commissioners to site(s). 7. Owners/developers/applicants for a land use action related to the subject real property are invited to meet at the site(s). 8. Commissioners may individually visit the site(s) without public posting. Follow-up: 1. Site visits conducted will be noted and summarized at the subsequent Planning Commission meeting. Ex Parte Communication: 1. As noted above, all Planning Commission site visits are subject to the Open Meeting Law. Site visits are not televised or recorded. Therefore, Planning Commission members must take extra steps that they are not engaging in ex parte communication with any third parties. 2. As the Planning Commission (in an advisory role), and the City Council (in a binding role) act in a quasi-judicial capacity when processing land use applications, it is vitally important that such decisions are based on documents and information that are accessible to all parties. If a Planning Commission or City Council member has access to information outside of the record (i.e. located in a land use application or divulged at a meeting), the member must take affirmative action to ensure the information is included properly in the record in a timely manner so that all parties and the public can fairly be apprised of it and have an opportunity to respond or address the information. 3. “Ex Parte Communication,” for purposes of this Policy, means any type of communication, verbal or written, between one or more Planning Commissioners, City Council members, or City officials (the “City Parties”), and any third party, whether it be an owner, developer, or applicant related to real property that is the subject of the site visit, a City resident, or a non-resident (the “Private Parties”), that tends to discuss the items listed in Section 4 below. City Parties and Private Parties may engage in general discussion regarding the site, as long as all parties have an opportunity to participate. 4. No City Party may discuss the following items with any Private Party during a site visit: (a) granting or denying privileges, rights or benefits to a particular party; (b) interpreting, applying, or enforcing rules or laws; (c) purporting to issue, suspend, or revoke applications or permits on behalf of the City; (d) determining rights and interests of any party; (e) evaluating and passing on facts as they apply to existing laws or rules; (f) purporting to order or abate any action on behalf of the City; (g) purporting to take a particular position or make a specific determination on behalf of the City, before any process has begun under the City’s code, zoning ordinances, and other related regulations; and (h) any other action that is reasonably intended to bind a City process, or is undertaken to the detriment of the Minnesota Open Meeting Law. 5. The intent of this section is to prevent Planning Commissioners and other City Parties to communicate outside the setting of a duly called public hearing on any issue of fact or law regarding any matter that may yet come before the Planning Commission, for further recommendation to the City Council. If a Planning Commissioner or other City Party receives a verbal or written communication, such communication shall be summarized (in the case of a verbal statement) or reproduced (in the case of a written statement) to the remainder of the Planning Commission and City staff, preferably at the next regular or special meeting of the Planning Commission that discusses the related topic or land use application.