Agenda - Planning Commission - 08/06/2009

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".~~., " ~<- ~,~~: '~~~.'\\:' ;~ :':::.":;;__'~~::. r<~~- ~ y: E~ .( N ~I.":~ G:.-- y-':~ Jr:R -. ~j-_t>;~'~:- :~-~: :~'?:~~~:' --. : .~>:=-'i'::~~( ':, ::~.~~~> .: When. Not to Engage with Citizens . magine that your city is facing a' difficult land use decision that has split the community, A developer is building a large multi-family building on prime lakeshore property. Some citizens think a new development will revitalize the area; others think it will ruin the neighborhood. Neighbors are calling and writir).g city councilmembers. The developer has offered to give the councilmember from that district a persorial tour of the site to explain its benefits. Should a single or small group of councilmembers meet with the neigh- bors? Go on the tour? Try to mediate a settlement between the factions? It may be tempting for a city coun- cilmember to wade into a contentious situation and try to resolve disputes or learn more about a project. Mter all, most council or commission mem- bers are interested in the'community and want to make it better. They are go-getters and problem-solvers who want to roll up their sleeves and get involved. City councilmembers want to be responsive to the citizens that elected them. But sometimes, a city leader's job is best served by knowing when or how to disconnect from specific interactions, City decision-makers should avoid direct individual contact with ~itizenS regarding matters pending before the city. Instead, decision-makers should try to make sure that all discussion happens in public with all interested parties, Having meetings that involve only one side to a controversy (known as ex pm.te contacts) may create an impression that governmerit is operating in secret and not providing a fair process to all partles-a result that: is in direct con- flict with the engaged and responsive approach the city councilmember . may have intended. rUN E 1J~8 y 2 0 0 9 By Paul MmlJin The importance of these consid- erations is especially true for land use regUlations, which impinge upon one of the pubLic's most strongly held rights: the right to use private property. Cities that want to regulate land use must develop regulations and then apply them in a consistent and public manner, When processing land use applica- tions, cities often act in a quasi-judicial capacity. The city's decision will directly 'impact an applicant's property rights and the due process rights of all 'parties involved. Just like a judge or jury cannot accept evidence outside of the cqurtroom, the city should not accept evidence outside of public meetings. Like a judge, city officials must avoid any appearance (or reality) that they have already made up their minds or that they favbr one side or another. Jf citizens contact city officials regarding a pending matter, the most prudent and responsive course of action is to encourage participation in the public process 'so that everyone, involved can be ipformed and engaged in the conversation at the same time. A city's authority to make decisions rests with the entire council, not anyone member.All decision-makers should ' have access to the same information. If a city councilmember wants to get more deeply involved with a project in his or her district, and the formal hearing process is too cumbersome, there may be some middle ground such as informal town ,hall meetings-but the idea should be one that the entire council is informed about. Many contacts between citizens and decision-makers are subject to the Open Meeting Law; which requires that any situation be treated as a public meeting of the council if a majority of the city councilmembers is in atten- dance. Even if the letter of the Open Meeting Law does not apply, the spirit MINNESOTA CITIES of open meetings and due process still applies. Government business should be conducted openly so everyone can know what information was presented and have an Dpportunity. to participate. It may be difficult for council and commissioner members to step back from direct interactions with the com- munity. However, the public system of open meetings and equal participation is set up to ensure due process and a fair hearing for all parties. It preserves the city's appearance of neutrality and pro- priety, and can head off future conflicts arising from a perception of unfairness. , While it may seem tempting to wade into a situation and problem-solve, doing so is likely to create more problems than it solves. Consider this: if an application is denied, and the applicant discovers that a city councilmember had ex1:ensive private meetings with the opposition, how will that look? Or the reverse: what if a controversial application is approved, and the councilmembers had' private meetings with the developer?' Even if the decision-maker acted with the best of intentions, the appearance of impropriety can create problems that could have been avoided. In order to create a consistent approach, cities should consider adopt- ing a formal policy regarding ex parte contacts and how to handle them. The key is' to find a common understanding of the appropriate, individual role for city councilmembers that will balance responsiveness with considerations like appropriate decision-making and the Open Meeting Law. Having a policy may not avoid all conflicts, but can help to avoid accusations about inappropriate r~les or secret meetings. ... Paul Menvin is senior lan'd use attorney 1-!lith the League oj Minesota Cities. Phone: (651) 281~1278, E-mail:pmen!lin@lmc.org. 13