Agenda - Planning Commission - 12/01/2005

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STEPS TO IMPROVE ZONING BOARD COMPOSITION We start from the premise that appointing a broader cross section of the community will better represent the interests of all seg- ments of society. 81ue-colJar workers, for example, may be less concerned about eco- nomic development and more concerned about the impacts of iow-income neighbor- hoods. Second, we believe that boards should not be dominated by those with significant connections to development activity. There are several measures that could help achieve better zoning board representation. Statute or Ordinance Restdcting Appointments. Oregon has attempted to achieve a more diverse board by prohibiting more than two members from ,the same occupational type. Because the term ~occupa- lionel type" is not defined, however, it does not prevent the overrepresentation of white- collar professionals. It may be difficult to achieve this goal of occupational diversity by statutory mandate. For example, a statute requiring at toast one board member from a labor occupation and one from a service occu- pation might eliminate othe~ise desirabte board members or be_difficUlt to fulfill in smatl cities with [ow populations in those cate- gories. Some states, such as Michigan and idaho, have a general admonition that boards should include a broad representation of interests, Although difficult to enforce, such a mandate would help encourage diverse appointments. We also recdmmend that city officials who appoin, t zoning board members be made aware of the benefiLs of board diversity, and that courts recognize that non- diverse boards may not be entitled to ~he degree of deference normally accorded. A statute or ordinance can also prevent zoning board domination.by development interests. A statute codld, for example, pro- hibit appointing more than one-third of a board from those whose occupations are identified as directly affected by development, Unlike the Oregon statute, the restricted occu- parians should include not only real estat~ agents and developers, but also lenders, appraisers, landscapers, contractors, con- struction company employees, and real estate lawyers. The category could be broadly defined to restrict membership "of those whose occupations may be si§nificantty impacted Oy development activity." Strong donflict of Interest Law.. Anoth er approach is to enact a conflict of interest pro- vision, which requires board members to refrain from participating' in matters in which they have a direct or indirect interest. State laws regulating zoning board conflicts are rare and those that do exist fail to speciE/what interests are dis- qualifying. Some cities have adopted their own conflict rules or policies, with varying effective- ness. The vast majority of cities, however, operate without any explicit conflict re§ulao lions. We recommend that a city adopt a conflicts statute that is broad enough to cover even indirect interests, and is specific enough to guide board members' decisions on recusal. A model conflict of interest statute should address the most common aspects of conflicts of interest: (t) Personal interests that are directly or indirectly tied to the zoning deci- sion; (2) financial interests that are directly or indirectly tied to the zoning decision; (3) esso- ciationat ties, familial relationships, friend- ships, employment, or previous business deal- ings; and (4} prejudgment of the issues. Unless conflicts of interest are well defined, the statute will provide little guidance to board members and force parties to rely on court interpretation to give the statute meaning. Case law shews that a court's definition of a conflict'can be difficult to predict. For example, a conflict rule should not simply state that financial interests are a conflict. It should define what constitutes a financial interest. It should also explain what must be done [f there is a conflict. We recom- mend that a zonin~ board member with a conflict not be allowed to participate in the dec'ision in any form, because even non-voting 84 ZONING PRACTICE 1_0,05 AMERICAN PLANNING ASSOCIATION I page 6