4.a 1 Staff Report-site visits
Staff Report
Date of Meeting: April 5, 2016
To: Planning Commission
From: Neil Soltis, Administrator
Re: site visit guidelines
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.
Issue: Should the Planning Commission and / or City Council adopt a policy on site visits or 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, prohibited
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.
In further discussion with Andy Pratt, the City Attorney, he has recommended that if the
Planning commission wishes to continue to hold site visits, that the guidelines be revi sed. A
draft of a revised policy that Andy prepared is attached.
Options:
Adopt the revised guidelines
Modify the guidelines
Discontinue the use of site visits
Continue with site visits but recommend the City Council adopt a policy on ex parte
communications that would cover the Council and other Boards and Commi ssions when
acting in a quasi-judicial capacity