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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