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2013 06-20 Spc mtgE11 IDIAN*,,. MERIDIAN PLANNING AND ZONING I C A H O COMMISSION SPECIAL WORKSHOP MEETING AGENDA City Council Chambers 33 E. Broadway Avenue, Meridian, Idaho Thursday, June 20, 2013 at 5:30 p.m. 1. Roll -call Attendance _X Macy Miller _O_ Michael Rohm (arrived 5:45) _X Scott Freeman _O Joe Marshall X_ Steven Yearsley - Chairman 2. Adoption of the Agenda Approved 3. Items for Discussion: (Diane Kushlan and Bill Nary) - Planning Commissioner Ethics - How to Make Good Decisions (Deliberative Process) - Legal Procedures and Conducting Hearings Presented/Discussed Adjourned at 6:56 p.m. Meridian Planning and Zoning Commission Workshop Meeting Agenda — Thursday, June 20, 2013Page 1 of 1 All materials presented at public meetings shall become property of the City of Meridian. Anyone desiring accommodation for disabilities related to documents and/or hearing, please contact the City Clerk's Office at 888-4433 at least 48 hours prior to the public meeting. Meridian Planning and Zoning Commission Workshop June 20, 2013 Special Workshop Meeting of the Meridian Planning and Zoning Commission of June 20, 2013, was called to order at 5:30 p.m. by Chairman Steven Yearsley. Present: Commissioner Steven Yearsley, Commissioner Joe Marshall, Commissioner Macy Miller, Commissioner Scott Freeman and Commissioner Michael Rohm. Others Present: Machelle Hill, Bill Nary, Bruce Chatterton, Caleb Hood and Dean Willis. Item 1: Roll -Call Attendance: Roll -call X Scott Freeman X Macy Miller X Michael Rohm X Joe Marshall X Steven Yearsley - Chairman Yearsley: Good evening, ladies and gentlemen. At this time we would like to call to order our Meridian Planning and Zoning Commission Special Workshop for June 20th, 2013. And let's begin with roll call. Item 2: Adoption of the Agenda Yearsley: Thank you. First item on the agenda is the adoption of the agenda. Can I get a motion to adopt the agenda? Freeman: So moved. Miller: I second. Yearsley: I have a motion and a second to adopt the agenda. All in favor say aye. Opposed? Motion carries. MOTION CARRIED: ALL AYES. Item 3: Items for Discussion: (Diane Kushlan and Bill Nary) - Planning Commissioner Ethics - How to Make Good Decisions (Deliberative Process) - Legal Procedures and Conducting Hearings Yearsley: So, the next item is the discussion with Diane and Bill. At this time I'm going to kind of suspend some of the rules, so if you do have questions feel free Meridian Planning & Zoning Special Workshop June 20, 2013 Page 2 of 25 to ask the presenters directly for the questions and we will start off with Diane. Chatterton: Mr. Chair, if I could just say, we have been talking about having some -- some training for you all, because it's actually been a number of years. It might have been four, five, six years since we last did some and, of course, we have a couple of newer members and so we felt that, well, this is going to be old hat for some of you all, perhaps a refresher. We do have some newer members as well and as we get into this we love feedback about what -- what other enrichment training we can perhaps seek out and provide to you. Is this sufficient? Do we need to have a follow up and what would those subjects be? So, we are really happy to have Diane Kushlan join us and she's going to get an assist from Bill Nary. Diane is a well-known consulting planner in this area and has done trainings with the Urban Land Institute, the Association of Idaho Cities, and so she's -- she's really well qualified to do this, so Diane. Kushlan: Thank you. Good evening and I'm glad it's not such a nice night as it's been. But I hope none of you are basketball fans. No? Okay. Good. So, thanks very much for inviting me. I appreciate this opportunity. We had a lot of discussion among the staff about what to focus on tonight and there were a lot of different topics, but I think we are kind of organizing around this agenda. One of the -- just to give you a little primer on the Land Use Planning Act and other laws that affect your planning activities, to talk about the types of decisions and rules for those decisions and, then, Bill's going to talk in some detail about the open meetings law and your -- your requirements under that act. Then, I'm going to talk a little bit about the distinction between policies and codes and, then, if we get time we will talk about the conduct of meetings and how to make good decisions. If we don't get that far along I have got a little handout I can leave with you and maybe that's a future training session if we don't go that far. I think, first of all, it's fundamental to remember -- and this might go back to civics class -- the cities and counties are really the children -- and sometimes we might think are the step -children of the state government and the only authorities that cities and counties have is that which is granted to them by -- by the state and so that's -- and in this state it's probably -- there has been some research that has suggested that -- that the authorities that we have are much more controlled, more than any other state in the country. So, you are limited and the city is limited to that which is just expressly granted to you and if there is any dispute between whether it's your responsibility or a state agency, you're always going to lose out on that situation. So, that's a fundamental principle to keep in mind as we move forward. The authority to plan is really, in a number of different legislations in the state of Idaho. We are going to focus on the Land Use Planning Act and we will spend some time on that. But I wanted you to be aware that there is these other provisions, too, and you're probably familiar with a number of them. First of all, the authority to zone is granted to you in the constitution. That's one of those fundamental police power acts that was granted to cities way back in the last century -- two centuries ago and that has been reinforced through court cases that zoning is a legitimate exercise of the police Meridian Planning & Zoning Special Workshop June 20, 2013 Page 3 of 25 power. The Land Use Planning Act is the one that mandates that you must plan and implement plans. There is also a subdivision ordinance which actually predates the Land Use Planning Act. I think it was adopted in the '60s. And, then, there is a provision for development impact fees, which you're probably certainly aware of and may be involved in from time to time. There is provisions related to annexation and, then, there is also a Uniform Conservation Act, which grants cities the authority to create easements that restrict land use. So, I'm going to spend a little more time -- first, a couple words about zoning and this is kind of getting into the distinction between codes and policies, but as mentioned, zoning is a legitimate exercise of a police power. That's the same authority that's granted for all the police activities and any public safety for food inspections and all those kind of things to protect the public health, safety, and welfare and it is the most, broadest discretionary authority that you have that's granted to you by the state. You have more wiggle room, let's say, in that authority than anything else. And this is the ability of the -- of local government to restrict people's activities and in your case it's private property for the benefit of the common good and zoning through the years has been found to be, you know, a very valued tool for local governments in terms of protecting property rights, preserving neighborhoods, and certainly reducing the impacts of one type of private property action on another private property. So, let's scroll down to the Land Use Planning Act. This is the power for you to plan and it also has some statutory guidelines to follow and I think the Act -- having worked in a couple other states, I think that the Land Use Planning Act in Idaho is pretty good, because it's not a lot of -- there is not a lot of detail in it and some other -- in other states that I have worked in it's a lot of very very detailed guidelines. You actually have a little bit of room for interpretation in this act than some other -- some other states. This Act has a really interesting history. It was originally adopted in 1975 and it was a very progressive legislative session that was the same legislative session that granted -- that approved mandatory kindergarten. And Governor Andrus was sort of the champion before the Act was adopted. There was a series of committees around the state and had little hearings and talked about what was needed. There is some -- there is some rumors that the state was prompted to enact this -- the Land Use Planning Act, because there was fear that the federal government was going to impose some requirements. It was -- this is an era when the NEPA provisions were adopted and so rather than have the federal government dictate what land use planning provisions should be in Idaho, they decided to move ahead and adopt their own. So, there was a number of bills adopted. The one that was actually passed was introduced by Senator Risch and, then, it was implemented over a three year period throughout the state by a unit in the governor's office called Planning and Budget. That unit's kind of gone away now, but at the time they went around the state and helped local jurisdictions put their zoning and their plans together. Since 1975 the Act has been amended a number of times and if you look at it, it's a little bit confusing because of that, because as new provisions have been enacted they have just sort of been tacked on to the end of the statute and we will talk a little bit about some of those. In my mind there is three main parts of the Land Use Meridian Planning & Zoning Special Workshop June 20, 2013 Page 4 of 25 Planning Act. One of the purposes identified is why the state wants local government to plan. The second is the mandate that governments must plan. And the third is the enumeration of powers and how those are carried forward by cities and counties. So, I'm going to talk briefly about each one of these and, you know, the purpose statements are those things that we typically kind of overlook, but I think they are very powerful to go back and review from time to time and, you know, in this state private property rights and protecting those is certainly a primary concern and so that is one of the purposes of the Planning Act. Also insuring that there is adequate public facilities and this is a challenge, because there is many local governments that rely on a lot of single purpose districts, like utilities. In our case a separate highway district and schools, they are not mandated to plan under the Planning Act, but yet the provisions that they provide are very important in your planning. So, that means there is a lot of reliance on getting them involved in public information with them. Protecting sensitive and natural resources. The fourth purpose is my favorite one, which is to insure that urban development is -- happens in cities and so when these big planned communities were being proposed in Ada county a number of years ago with a lot of urban services, I questioned are those really consistent with the purpose of the Land Use Planning Act. Avoid overcrowding. Insure that development is compatible with land and protecting against hazards. I think these are probably all purposes that you have enumerated in your comprehensive plan in terms of goals for the -- for the city. Now, the city and county must plan and implement their plans, but there is no sanctions in the Act if they do not and we know from a land use survey that we did a couple years ago there is a number of counties and cities that have never enacted plans or zoning. I think the comment that we got from Idaho county about their zoning was, no, we don't have zoning and we are damned glade we don't or something to that effect. So, there has been some real, you know -- these communities don't see the purposes for it. There has been some efforts over time to repeal their zoning and repeal their plans. There is also other communities that have never ever updated their plans from the original adoption in the 70s. But gladly in this valley I think we see the value of planning and everyone keeps their plans and their codes up to date. This part of the statute allows for the elected officials -- in this you're your city council to delegate their responsibilities for planning to you, with a couple exceptions. There is a lot of communities that don't do that. These small little communities the council is also the planning and zoning commission as well. But Meridian is really glad to -- and I'm sure happy to have you doing all the hard work for them. So, the powers that are enumerated in terms of the duties under the statute is, first of all, to prepare and implement a comprehensive plan, then, to adopt ordinances for zoning and subdivisions implement that plan and, then, adopt procedures for permits, adopt standards for development and that's a -- that's one of those areas of the statute I think that's really really broad, because the standards that -- the topics are, you know, road design, lot design, so it gives you a lot of latitude in what those standards can be. Provide for notice and public hearing and record of hearings. Issue decisions in the form of Findings of Facts and Conclusions of Law and creates and maintains a transcribable record of all Meridian Planning & Zoning Special Workshop June 20, 2013 Page 5 of 25 proceedings and I will talk about some of these in a little bit more detail. The required elements of the comprehensive plan -- you're probably real familiar with this. There is 16 required elements. The most recently added one is agriculture, which was added two years ago, which requires that you look at the -- the impacts of agriculture within your community and, then, before that the more recent one was the National Interest Electric Transmission Corridors, which is such a mouthful, but that means that if you have a major national transmission line going through like Kuna and southern Ada county was experiencing, that you must address the impacts of that and recognize its existence in the comprehensive plan. And, then, there is other elements that can be added by cities and counties. From our survey we found that historic consideration was the one that was most frequently added as an element in plans. Requirement to have a map. And, then, a future acquisition map is one of those optional elements. It makes sense when you're a full service city, you know, doing the whole range of services that you might want to have a map that locates where you may need additional sewer treatment plants, parks, recreation, that kind of thing. So, these are the other provisions of the Land Use Planning Act and have to say originally it was the Land Use Planning Act and so we called it LUPA and, then, in the '90s they changed it to the Local Land Use Planning Act, so now it's LALUPA. So, that was our distinction that somebody, you know, made sure understood when I came to Idaho. But these are mostly those provisions that have been tacked onto the Act over time. One is this ability to transfer development rights from one zoning district to another and this is typically when you have a sensitive district that you want to restrict development, there is the ability to put value on the density or the intensity of uses allowed in that district and transfer that value to another district where you would like to encourage development and there is several counties in the state that have adopted transfer development rights. It's been a very very successful program in places like King county, Washington, where they have preserved a lot of agricultural land through this tool, but it's a very administrative intense provision and not something a lot of cities take on. There is the authority and procedures to adopt both emergency and interim ordinances and to establish moratoriums on certain types of actions or decisions and the emergency provisions allow for the Council to oversee your public hearing requirements and adopt emergency ordinance, but the standards for that are pretty high, they have to be an imminent threat to public health and safety and welfare. So, you know, I think that's an area where the attorney is going to be shaking in his boots I think if people start talking about an emergency ordinance. Interim ordinances are typically allowed when -- again, there has to be an imminent threat that it might be when you're adopting a plan or some new plan provisions and you want to make sure those are in place before development occurs. There is provisions for area of city impact, which you probably are all familiar with. It's a negotiative process between the cities and the counties on how the city is to expand and it does involve the planning and zone commission in terms of coming to you and asking you what are the questions that should be considered in that negotiation process. There is provisions, then, for pre -annexing and planning for areas that will be annexed Meridian Planning & Zoning Special Workshop June 20, 2013 Page 6 of 25 within the city and those all are -- require public hearing in your standard format. Then in the '80s there was provisions added to the Act which relate to group homes and residential care facilities and set a definition that any -- any units that have eight or less unrelated individuals must be considered by you as a single family residence and you can't discriminate on -- with them in terms of the requirements. Then there is provisions for siting of manufactured homes. Again, a similar thing to group homes. They have to be considered single family residences, although if they are built outside of a mobile home park there is certain design standards that can be applied to them. And there is provisions about restricting stores that carry sexually orient material. There is some distance restrictions from schools and other uses. And, then, finally, the most recent amendment has been -- and I think there is some this year that I'm not up to date on -- is the use of ground water for -- use of ground surface water for irrigation. And you probably come in contact with that provision quite a bit in your developing areas. Anybody have questions at this point? Okay. So, as mentioned the law allows that certain responsibilities may be delegated to the planning and zoning commission and that does not include what we call legislative matters that affect the whole community, like a comprehensive plan or a zoning code, those are items that have to be decided by the city council. But other than that you're pretty -- they can delegate pretty much what they want to to you. The Meridian code is very good about entitled to, specifying what the council has delegated to you and you probably spend most of your time on those items four and five, making recommendations to the Council on comprehensive plan items and, then, number five, which I looked at your agenda tonight, is full of taking action on individual applications that come before you. But I think it's important to go back and look at one, two and three, because it really underscores your role as sort of the planning advocates for the community, meaning that, you know, take some opportunity to get out in the community and, you know, talk to citizens, take surveys, and maybe conduct informal meetings out in the community where you talk about the planning and neighborhood needs and just being sort of the educator's advocate for the whole community. You certainly are the caretakers -- you have to think of yourself as sort of the caretakers of the community plan and take advantage of opportunities to translate that out in the public. So, this is a chart that's in the development code, which identifies the different decision makers that make planning decisions and I highlighted those that -- this is just one page from the chart, so in the case of annexations and rezones, you are a recommending body, the City Council is the decision maker. That's the same case in the comprehensive plan amendment further down. And, then, in that darker blue area that's where you get a recommendation from the staff and you are the decision maker on conditional uses, except for those that are concurrent with those other things that follow in the next chart line, next row. So, it's good -- you know, if you -- if you look at any section of your development code in the administrative chapter, this is probably a good one to focus on from time to time, to recognize there is a whole host of decision makers out there and you're one of them and sometimes you're the final decider, unless there is an appeal and sometimes you're in a recommending role. Meridian Planning & Zoning Special Workshop June 20, 2013 Page 7 of 25 So, with that I'm going to turn it over to Bill. You can have a break from listening to me. Nary: Thank you, Diane. I'm going to talk a little bit about open meetings and ethics in your position as commissioners. Some of it, you know, is relative to the city council, sometimes it's relevant to the commissions, but the open meeting law and really the ethics in regard to your position as commissioners is fairly similar to the same thing that the Council has to deal with. They may have a little bit more of the commissions, but definitely some of you that have been here awhile know that you have just as great an influence sometimes in your neighborhood or your community with your neighbors and you certainly had people here thinking that you have great influence and have -- really want to be heard. I included my favorite lawyer as Rumpole of the Bailey, because everything sounds better with an English accent, so if I was able to do that I'm sure this would sound even better. So, does the law regarding public meetings apply to the planning and zoning commission? It does. So, all meetings of governing bodies of public agencies and governing bodies also includes commissions that are authorized to make recommendations to public agencies. So, state law is very specific and so all of the city's commissions -- we don't just have a planning and zoning, most of you know we have parks, we have historic preservation, we have now a transportation commission, solid waste -- all of those commissions are governed by the public meeting requirements of the state code. Does planning have subcommittees? You don't very often have subcommittees. Some of our other commissions -- parks is probably the prime example, they have a number of subcommittees. Does the public meeting law apply to them as well and it does. So, even if -- if the governing body requires the public compliance, then, all of the subcommittees that come from that have the same requirements. And the requirements aren't very onerous. The requirements are notice, an agenda, and sometimes public hearings depending on what specific things. Planning and zoning has more state code in relation to planning and zoning on what they can or can't do and how they are to operate than some of the other commissions, because, again, the state law -- and Diane was exactly right. The powers of the cities come from what the state legislature grants and the Local Land Use Planning Act is one of those things and it specifically calls out that if you have a planning and zoning commission, whether it's made up of your council, which it could be, or a separate commission, which it is here in this case, you're still governed by the same requirements as the council would be in regards to public meetings. The Attorney General says the requirements of the open meeting law will be complied with, should not be evaded by holding smaller meetings with less than a quorum present or by having a go between contact each of the governing body members to ascertain his or her sentiment and that's one of the things that the law isn't very specific. We sometimes in our business refer to that as a serial meeting or where sometimes departments they want to meet with one commissioner and, then, another one and another one and another one and another one, so that they don't have to have a meeting and we discourage that. It doesn't specifically call Meridian Planning & Zoning Special Workshop June 20, 2013 Page 8 of 25 that out in the state code, we discourage that, because, again, the appearance of the public is that we are trying to have all this conversation outside the public view and the spirit and intent of the public meeting law is that all of these will be held in the public view, so we discourage departments from having separate meetings with either one or two commissioners. Sometimes it's more for information and that's okay, but we really try to discourage that. If it's going to be a topic that's going to come in front of you -- and in other cities it can be even more overt I guess. There are certain -- some cities that will have subcommittees or sub sets of committees -- of commissions and you will end up at the commission hearing and someone will say, well, we discussed that at the subcommittee, this person from the public is there to talk about it, they missed that meeting, because nobody told them where that meeting was, because there wasn't an agenda, it wasn't properly noticed, and all of the discussion about the topic was had offline and now the commission is just accepting a recommendation from this sub group and they actually aren't even discussing the issue. Well, that's a problem, you know, from the public's standpoint they want to have an opportunity -- they can't show up at, you know, four or five other meetings, they need to be able to come to a noticed meeting that they know about and that's the purpose of these commissions. So, that's the intent of the Attorney General's language. I thought that was quite a handsome picture of Mr. Wasden, so we thought we would use that. So, what does the open meeting law say? Again, all commission meetings are open to the public. There is an opportunity for all persons to be in attendance. They have to be noticed 48 hours before the meeting and 24 hours if it's a special meeting and they have to have summary minutes. Now, we in the City of Meridian have a number of years ago made the decision that we were actually going to have a stenographer take verbatim minutes. We did that for two reasons. In the land use business if you actually get an appeal from the Commission to the Council to a district court, there is a requirement that all of the meetings be, then, transcribed, so they actually have -- the court doesn't want to listen -- judges don't want to listen to tape recordings. They don't do that. They want to read it. So, they require at that point we have to transcribe minutes. They made a decision many years ago that we were going to do that for all of the meetings, so we actually have a stenographer for all of the City Council meetings and all of your meetings. So, even if -- even though, you know, the likelihood of them appealing may be fairly small, we feel it's of value and over time our Council has seen great value in that and hopefully maybe the Commissioners have as well, if you come back to an issue, you had a public hearing and maybe you had to set it over and come back, it's nice to have a memorialized document that you can review yourself to see what was discussed or for the Council to be able to -- and they are going to hear something, this is a public record, so they can review the minutes of the meeting and see what the conversation or discussion was in front of you. So, the city made a decision a number of years ago that that was of value to the city and so have been doing it that way for a number of years. So, what's a meeting? And, you know, some of you may have heard -- I know staff has heard, I know the clerk's office heard my standard mantra is it a meeting or not a meeting. Meridian Planning & Zoning Special Workshop June 20, 2013 Page 9 of 25 Sometimes it's a meeting and sometimes it's not a meeting. If it's a meeting that means we are convening to make a decision or deliberate towards a decision, which means we are going to get information that at some point may be relative to you making a decision about something. The decision has to be -- there has to be a quorum present for it to be a meeting. So, again, for this group there is five, so you have to have half plus one, which is three. So, if you have a quorum, you're convening, you're making a decision, the quorum is there of the group and you're going to take some action, that's a meeting. You deliberate -- the statute says you're going to deliberate towards a decision. What does that mean? Again, receiving information, exchanging information, exchanging opinions. It doesn't have to be you actually have to make that decision at that point in time, but those are the conditions that the public meeting law requires that you have a noticed meeting and so those are requirements that we are pretty sticky about or pretty strict about from a legal perspective, because, again, if you do it wrong it isn't the end of the world, but you got to do it again. No one wants to do it again if you don't have to, we just need to do it right the first time. Freeman: Bill. So, that precludes us from, you know, calling each other about an item on the agenda saying, hey, what do you think about this; right? Nary: Absolutely. Freeman: That's a meeting. Nary: Yes. That's another form of a serial meeting is commissioners or councilors calling each other and saying what do you think. So, we will go through a couple of examples and if I don't hit on all the examples, then, maybe we have a few more that you might have actual scenarios -- you know, in big or small communities you run into the same things, at some point people know who you are from what you're doing, so, then, you see them in the grocery store and they are still irritated about whatever you approved last month and they want to tell you about the next one that's coming up that they want you to know about. So, we will look through some of those. So, here is an example. Is this a meeting? Four commissioners see each other at a dinner party, they talk about BSU, is that a meeting? Being a Vandal, that appears to be a travesty, but it's not a meeting to me that you're just at a dinner party, right? You're just -- you're just at an informal occasion. Okay. So, no, it's not a meeting. Informal gatherings are not considered to be deliberative, but, you know, you got to always be cautious. Oh, that Joe Vandal somehow got in there. I don't know how that happened. So, that's not a meeting. So, having a casual, informal -- you know, you happen to be at lunch and see two of you at lunch, it doesn't mean the three of you, if you go to Pie Hole to have a piece of pizza, you can't do that -- no, it doesn't mean that. So, it means that you don't want to talk about business, though, when you're there. Next one. Four commissioners see each other at a dinner party -- that seems to be happening a lot, going to dinner parties. They talk about where the commission should look to take further study Meridian Planning & Zoning Special Workshop June 20, 2013 Page 10 of 25 of comprehensive plan designations within the city. Is this a meeting? Freeman: It sounds like it. Nary: It sounds a lot more like a meeting now, right? Now we are starting to talk about business, okay? It's not necessarily a meeting yet, this is still informal, but -- and we are not -- it's not a deliberation toward a decision, but now we are getting into a very fuzzy area that would make me uncomfortable. If I was at the same dinner party I would be saying, you know, why don't you wait and talk about that at your next meeting, because that's probably more appropriate than doing that. Now, it may be very innocent, it may just be should we bring this up at the next meeting, should we talk about that. Again, you know, we are not trying to make sure people don't talk to one another or live in this little box, but we want to make sure that we are not violating some of the -- again, remember, the public is there thinking they are talking about business and how it's going to affect my life somehow and I don't get to participate. So, again, it really depends on the context, but we want to make sure, again, we are not talking about things that we probably should just wait until the meeting comes up. Rohm: Bill, I have a question on that. Nary: Sure. Rohm: After the fact, say we have our meeting tonight and after the meeting is over and we have made our recommendation to Council and we go over to Pie Hole and have a piece of pizza and we started talking about the decision that had already been made in the open meeting, is that a breach of -- Nary: You are likely to be fine, because at least at that point in your mind as the commissioners it's done; right? Now, there is always the potential that Council -- maybe whatever the recommendation was -- on occasion you have gotten the decision back; right? You have got the Council to say we are going to remand this back to the planning and zoning commission. But in my opinion, if it's done it's done. I mean the reality is -- now if it were to come back it might be appropriate at that point to say, by the way, after the last we did discuss this, but, again, the decision had already been, now this is a new application -- although it may not be technically a new application, but it's a new circumstance in front of you -- I wouldn't be super concerned. Once it's done it's done. If it's not in front of you, it's not pending in front of you, it's perfectly fine. Rohm: Okay. Yearsley: Also on that you don't want to talk about, well, in future ones we should do this. Nary: Exactly. That's a perfect example. Because, again, you can't prejudge Meridian Planning & Zoning Special Workshop June 20, 2013 Page 11 of 25 other applications -- again, I understand -- I mean, again, we are not trying to constrict people from essentially kind of a normal everyday thing, but you're exactly right, Commissioner Yearsley, I mean it would be very inappropriate for you even in a informal gathering saying if I ever see another one of those apartment complexes I'm never approving that. No matter what. Or if I ever see another one of whatever. No more hair salons in the City of Meridian, that would be inappropriate, because now you have really prejudged anybody that's coming in front of you and, again, no facts, no nothing in front of you besides that. So, again, that's the caveat. Again, if you were later asked to make a decision regarding the issue you sort of informally brought up, that might be an opportunity to say we did raise this before, but, again, we didn't discuss it at length, it was really just to make sure we brought it up at the next meeting to, then, put it on our agenda. Four commissioners see each other at a dinner party -- I guess I got to find better examples, because that's all you guys seem to do. Talk about requesting a consultant to provide analysis on the south Meridian- Kuna comprehensive plan that is on your upcoming agenda. Is this a meeting? It sounds more really like a meeting now. We are very detailed, we are real specific, we are talking about a specific project and we know it is in front of us on the next agenda. So, again, a meeting doesn't include a formal gathering, so now you have got a quorum, now you're talking about something very specific that's on your actual agenda in the future, that's more like a meeting. That's a little bit more problematic and so those are the things -- again, is it fatal, does it mean now you can never talk about this? No. You better reveal it at the meeting. Hey, we did bring this up, we didn't make any decisions, folks, we just brought it up for this purpose, now we need to get all the -- gather the actual facts so we can talk about that. But, again, it's always best to say, oh, we have got three of us here, we probably should just stop talking about that, let's just move on to something else. Let's bring it up at a meeting. Freeman: Bill, are you implying that if there were just two of us in this scenario it would be different? Nary: If there is two of you in the scenario it is not technically a meeting under the state statute -- Freeman: Still talking about things towards a decision. Nary: You're right. It doesn't violate the open meeting law. Is it inappropriate? Yeah, I think it's inappropriate. But it wouldn't violate the open meeting law, which, again, there is other ramifications if you do that. You wouldn't violate it if it's not a quorum, because you technically can't have a meeting without a quorum. But it is inappropriate. It's probably, again, better for -- and that's part of the intent of today is to recognize that circumstance and go let's just talk about pizza. Let's just talk about the Vandals. Let's just talk about something else, rather than business. That's what the meeting is for. So, two commissioners see each other to chat about the CUP application that's on their upcoming agenda -- Meridian Planning & Zoning Special Workshop June 20, 2013 Page 12 of 25 that's your example there, Commissioner Freeman. Is that a meeting? Freeman: Yes. it may not be appropriate, but it doesn't Nary No, there is no quorum, so -- violate the open meeting law. Freeman: Okay. -- again, the key in there was there is two. So, it Nary: Because there is no eting law. Would I recommend lih doesn't violate the open mefrom the public's perspective. recommend you not. Again, think of it licanhis way t ortneighbors of this particular application Have I disadvantage to the app of here, kind of decided what you already that at least two of you, before you g you don't have, really, a lot u think. Whether it's right or wrong or in't have any different -- Y public testimony. You facts. You have a staff urnpoht have an a -mai You nyou m ght have had some guy in have a few letters. Y° g ou might have had your neighbor who a grocery store that told you something, y but it appears, at told you something -- well, you have all this random information, mind least in this scenario, you might have kind of madeyour possible. up and t Again, it right. You know, that's why we need to avoid thatly isn't appropriate. Setting or doesn't violate the open �eeSo the Idaho Code,g lawl but it bwh ch was changed a couple changing agenda. Okay? quire re them to be set 48 hours years ago how the agendas are set and they q ere prior to the start of the meeting and changed -- and eere landhhow \theyl interpret some of the other attorneys in the state and o interpretation, it's the statute. The way the statute reads dou make als isn't just MY change to to agenda after you the way the statute reads -- it say Y you simply need to have posted it, but before you is what you ntended to d the meeting, on your agenda. So, make sure that what you p Is that the day if, for example, the clerk's office posts your agenda on Tuesday? an the interim from So, they post it on Monday your normally -- Monday oh, we have got this one Monday the clerks -- or the planning and zoning says, more report to add to the agenda, can we e an you approve your agenda smake can. You can do an amended agenda. When y sure to note we are approving the amended agenda that was posted yesterday. ahange your agenda once That's perfectly fine. What the statute says is if you cu have started the meeting you have started the meeting -- so, for example, Y tonight and in the interim Mr. Chatterton says, oh, Ilforgot, w Weaput tl onnthere, I g staff report we want to add to the meeting now, is you can do it, but forgot, we forgot, can we add this. What the statute sayosu're amending it now. what you do need to do is maak note t your he mgolod fait ng why you're and the reason Why are you adding it no be we forgot. It isn't a big deal, but it's really one of those situations may simply which is myself or Mr. where, again, the attorney that's covering the meeting, Baird, you want to talk to them -- we want to make sure that, again, someone Meridian Planning & Zoning Special Workshop June 20, 2013 Page 13 of 25 didn't have the opportunity to have come and talked about this and now they the last minute and maybe didn't get that, because we just brought it up at somebody wanted to talk about that. Again, we don't encourage that, we strongly discourage adding things once the meeting is started, , because, aver gain, noute matter, somebody doesn't know we are going to talk about it. Sometimes it may not matter, I don't think in your guys commission very often it's probably likely to come up, but I just wanted you to know -- I mean it can be done, we just have to make specific note of it on the record here tonie way ght, Spencer Spencertatute currently he is s. I did forget to introduce -- we have an intern intern. He's a law school intern with Concordia ho Municipal Attorneys Assoc ation ll ier ntern, he's working with us through th and so he wanted to sit in tonight. The only other of chties I ke to do Ith s�t Plann ng here on the bottom of the slide -- no open mike. Lots and Zoning is probably not very common, but zoniingyou level 1where t ll see ley will get s in some other cities and maybe even at the planning and of anything else that's going on to the end of the meeting and say has anybody g the statute they want to talk about? We really discourage agenda. that, So, because, someboy comes up here says you're supposed to have a posted g where they want to come up -- and this can happen in Planning and Zoning -- and they say I want to talk about either whatyou decided wantlast to tell you, the h they still don't like or what's coming up next week and Y way, next week you have got this Wendy's with this drive-tru that's That'sh napproprilat t, b ght? my bedroom and I want you to know I don't a They need to wait until next week. So, we very strongly send on' with for frompeoplle to randomly bring up stuff, because the p Y Commission standpoint or the Council even is you Want to can'ttalk anythbouting it. ll right? So, they could bring it up to you and say thing and you can say, well, that's on our agendaeto discuss. back next week. Thank you very much. We are done There s nothing else we are Or I don't like what you did lase would like k. llto getnt on a future agenda talk to the , it's not on the agenda, not here to listen to that. If you clerk's office, talk to the planning department, we don't just take random agenda items at the end of the meeting. So, we very strongly discourage -- don't evensomebody don't even do that. If some nowt' is howethe protocol wlly orkshamanyptimes the chair is sitting here, they don't k tell will you might ask at the meeting were you here for something specific, they willget on what it is, okay, you need to talk to the clerk's office, talk to planning, to the agenda, but we don't just add items to n cation.t Thisthe las probablyst minute 1the ust because somebody showed up. Ex-parte commu biggest thing in regards to planning and zoningThises thaoutr neighbor who doesn't we see is this ex-parte communication is off the record information. Y like what you did or going to do. This is somebody something who in. They with or lives in your neighborhood who doesn't likehat's gong don't want the Walmart, they don't want the wall, they don't t of the tame er ortevI mean those types of things -- those are informal things. again, you will have, like I said, unsolicited e-mail, voicemail that come to the Meridian Planning & Zoning Special Workshop June 20, 2013 Page 14 of 25 clerk's office, we try to funnel all that through the clerk to make sure it becomes part of a record. We don't want things to be this random influence on your decision that isn't part of the record, because either side should have the opportunity to address that, whether it's the applicant or whether it's a neighbor. You're getting influence from the applicant or someone in favor of the applicant or someone in favor of the opposition. That's not appropriate. The code is real specific about that. It's a rule of thumb. The Idaho Supreme Court says when a governing body deviates from the public record it essentially conducts a second fact gathering session without notice. So, again, whenever possible what you need to tell your neighbor is you need to come to the meeting or send it in a letter or send an e-mail to the clerk, so it's part of our record. I can't really discuss it with you here over the fence, because no one else is a part of this. You can just send it that way. That's the appropriate thing and feel free to blame me. Tell them our attorney won't let me do this. So, I'd love to talk to you, but our attorney won't let me do that and that's perfectly fine. People understand. Attorneys don't let people do a lot of things they'd like to do. Must we accept public testimony? The open meeting law doesn't require it in most circumstances, but it does in some and so, again, that protocol and that process is part of how you operate it. Certain things you require a public hearing. Usually the things that don't are things in regard -- that are considered to be legislative in nature, so we are talking ordinance amendments and things like that, although, again, in the land use field there is specific code sections that allow for public testimony, even in regards to legislative things. So, again, it depends on what the specific circumstances may be. When in doubt it's certainly much easier to allow people to have their two or three minutes than it is to not. So, it doesn't usually come up in many of the contexts. Here is another issue. This is a side of what we are talking about. If we are talking about the Walmart on the south side of the freeway next -- across the street from the Roaring Springs -- do all of you know where that is? Generally? Right. I mean we live in a pretty good size town. Just think if you lived in Glenns Ferry and you're going to talk about the person who wants to put in a Dairy Queen next to the restaurant on Main Street, do you think everybody knows where it is? They know where it is. What the court cares about or what the Supreme Court entares over t bout is the situation where that site specifically to look at commissions or councils have said this, so I could determine for myself whatever the issue might be to them and nobody else got to know that and the courts have been really that says, well, if they ive on saying that's okay, because, again, you have an app had went there -- you know, they went there at 5:00 o'clock and now they think the traffic is really bad -- maybe not in Glenns Ferry, but maybe here, and they said, well, at 5:00 o'clock the traffic is awful. I would not want this to be there, because there is too much traffic. Well, the applicant might say, well, yeah, you went at 5:00 o'clock on a day that school got out, even though on other days it's not the same. We have a traffic study. We have other things. So, they don't get an opportunity to rebut your presumption you created for yourself. Or you go over there and you say the same thing, thethese afternooghb rs are was fine. Wellnyeahbbut noise -- I drove over there at 2. Meridian Planning & Zoning Special Workshop June 20, 2013 Page 15 of 25 you're not here at 2:00 in the morning when it's really noisy. So, again, they don't have an opportunity to rebut those things. So, we discourage that. I mean, again, we live in a town and we all live here, we drive around, we can't avoid it. You know, it could be down the street from you. It could be where you drive every day to go home, to go to work, so it's not like you have to put on blinders and drive all around the city to get to your house, but it's really concerning and can be very complicated from a legal standpoint when you have a commissioner that says I went over there just to see if it was too this, too that, whatever. Now they are trying to do their own site visit with, again, nobody having the opportunity to have notice, to provide their own feedback to other people who have shared the same thing, because now you have got an opinion, but your other commissioners, they didn't go there at the same time, they didn't see that, so they have no idea how valid that is or whether that's really relevant. So, again, we try to avoid that. Obviously, again, you are going to know where things are. This code -- excuse me -- the case law allows, if there is a real need, that the chair thinks, you know, we really should go see this -- I mean somebody thinks this is a problem, it's too noisy, it's too big, it's too this, too that, we are going to have a commission meeting at the site, so now we are going to give notice, the opportunity to be present is there. Both sides can be there if they want to be. You're going to take some minutes. Now we are probably not going to do verbatim minutes out in a field, but you're going to have an opportunity to have some minutes, we are going to know who is there, we are all going to see the same thing at the same time. That's where the court said, okay, that's different. Now, it's a meeting, but we are complying with the open meeting law. We are allowing everybody the opportunity to be present. That's different and that's okay. So, that might be a really valid way of exercising your authority on something is to actually hold a meeting at a site. I wouldn't encourage it all the time, it is cumbersome to do, but it is something the court is more inclined to be supportive of than one person drove over there for that purpose. Can we vote by written ballot? No. So, it's not the most pleasant. Most of you have been on here awhile, so you recognize that having to vote in front of the public sometime isn't the most fun. Sometimes they don't agree with you. But we don't allow written ballots. You don't get to go in to another room and make a decision and come back and tell everybody what you did. Sometimes it would be nice, but you don't get to do that. I did have a mock hearing once with folks and it was part of Leadership Meridian and when they got done with the play actors yelling at them about what stupid thing they were doing and the commission -- or council members had to decide, one of the members was like, well, where do we go to do this? Right there. Right in front of the people who are really ticked and that's just the way it works. That's how community government works. Executive session. Executive session and closed meetings. I won't go into it too lengthy. You don't do those very much. There is specific exemptions in the Idaho Code that allow for it. It allows for a closed meeting in the -- in the planning and zoning context it's pretty limited -- I mean as to where it would likely be relevant. There are cases -- there are circumstances where it could be the matter of a pending lawsuit that you just need to be aware of it, so we may ask for an executive Meridian Planning & Zoning Special Workshop June 20, 2013 Page 16 of 25 session so that you are aware that you still can make whatever decision you need to make, but you need to understand that someone is suing us about this already and you just need to know this is going on and so I may need to ask for an executive session just to advise you of that. Again, not to make you change your -- to decide anything, just to make you aware. There is other circumstances that Council uses these -- there is ordinance -- our statutes allows if you're going to -- if the city is going to purchase land from certain types of folks that we could use that as a tool to meet in private, so that we could have this discussion off the record. Just a few others that, again, the likelihood for commissions -- it doesn't come up very often in the commission context. I'm thinking maybe in the parks commission, Commissioner Yearsley, when you were on there, we might have done one or two of those. Yearsley: Yeah. When I was there we only did one. Nary: Okay. You can have an open meeting. You know, that's really the -- the Attorney General's mantra is that if we are really not sure the intent of the code, the intent of the statute is the public should get to see what we are doing. You know, transparency is a big deal in government and really especially for land use where it really affects people's lives, we do think it's important that we be transparent. Can we meet by phone? We have had occasion -- and some of you I'm sure have been here for that -- where we don't have a quorum, because somebody is out of town, someone's ill, someone's got a commitment, we can't -- we can create a quorum by phone. One of you has to be here in this room, but only one of you has to be here. If two of you are on the phone we can have a meeting. We don't encourage it. We don't necessarily like to have public hearings that way. It doesn't say you can't, but I would prefer we didn't if we didn't have to, because, again, the public can't see your expression, they can't see whether or not you are actually listening to them. They can't tell whether or not you're irritated or really hanging on their every word and we think it's important -- again, that transparency really matters. Most of the time we have ever done it is really just to do routine stuff, take care of minutes, take care of old business, take care of approvals, but we don't encourage that. We have had occasion at the council level where almost all of the council members were present, maybe three of them, and one of them can't be, but it's such a significant issue that council member is asked to be on the phone and we have allowed it, but, again, we don't encourage it very much if at all possible. No e-mail deliberations. Again, that's that serial meeting thing. We really can't -- the other reason you don't want your e-mail to be part of the deliberations -- when somebody asks for a public record, then, I get to see all your e-mail, because I have to decide what fits and what doesn't. You don't want me to see all your e-mails, do you? I don't. So, we don't encourage you to use your personal e-mail to correspond on -- if your e-mail is, yes, I will be at the meeting or, no, won't, that's fine. If you're sending an e-mail saying I can't be there, but I want to make sure Scott knows I don't like this or -- we don't want you to do that. So, don't use that for deliberation or discussion of items. Telling us you're going to Meridian Planning & Zoning Special Workshop June 20, 2013 Page 17 of 25 be here or not is it. That should be all of it. We don't want to get involved in public records in your e-mails and those kinds of things. What if you violate the law? You can do it over. That's what the law allows. I mean there is -- you know, there is very few things that you can -- you just can't fix it. The problem is is sometimes it's really hard to back up the train once you have -- you have made a decision, you have made a recommendation, it's gone to the City Council, we are two weeks past it and somebody realizes we did notice it or we did something else that was a violation and now we got to back everybody up. Time is money. It impacts people's lives, it impacts their development, it impacts the developer, the applicant, the neighbors -- I couldn't -- I showed up then, now I got to show up again, we all know that people don't like that, that makes me kind of angry. So, it can be done. If the action was knowingly taking a violation of law there is actually the ability to be sued, there is actually the ability to be fined -- again, nobody wants that. Consult your attorney, CYA, you're going to be fine. So, make sure we don't end up doing this, we haven't had to do this for very often, if ever. Usually it's been for a very minor thing that we just try to make sure we covered ourselves, but there certainly is an out if it's necessary. The Attorney General's office has an online manual on open meetings. If you have ever had questions on your own and you want to go look that up, you're welcome to do that. We are here to answer whatever questions you have -- legal questions, myself and Mr. Baird or anybody on my staff can assist you if you have any questions at anytime. Government ethics, again, real briefly. Commissioners are also -- certainly cannot engage in business with the city. We have had that come up occasionally where we have had commissioners -- not as planning and zoning, but commissioners where they wanted to contract with the city with their business. Well, they can't. Unless there is a public process. So, as long as the commissioner didn't engage in creating the bidding specs the commissioner can bid on it, just like everybody else. But we can't just contract with them -- you know, there are certain circumstances where we normally wouldn't have to bid it out, depending on what it is, but if a commissioner wants to do it, then, we always bid it out, because now, again, we have to make sure that the public has the ability to participate, so it doesn't look like we just benefited one commissioner or the appearance to some people that, well, maybe they got on that commission so they could get some business -- you know, we don't want that, they don't want that, you know, we need to stay away from that whenever possible. That's our office, the people on my staff. Again, we are all here to assist you in any way if you ever have questions or anything like that, that's what we are here for. Again, anytime you have questions please feel free to call or e-mail to get in touch with you. And that's my friend Rumpole. And think I'm done. Yearsley: I have a quick question. Nary: Yes. Yearsley: When you were talking about amending the agenda -- I mean so we Meridian Planning & Zoning Special Workshop June 20, 2013 Page 18 of 25 have opened the meeting, we have adopted the agenda, and, then, something else came up, do we just amend the agenda from there and make a motion to amend the agenda? Nary: You can, as long as you have noted that we are amending the agenda and here is why. Yearsley: Okay. Nary: That's -- that's the one where the legislature made a decision a few years ago that you have to put a good faith reason why you're doing it now. They didn't define what a good faith reason is. So, the good faith reason could be we didn't realize we didn't add it to the agenda in the first place. The good faith reason could be we didn't realize we needed to have this done tonight and we can't wait until next week. You know, again, we try not to put things on the agenda that, again, a person in the public might object to or might have a reason to come and talk to you about it. So, we wouldn't have a public hearing in that regard, because it was specific to planning and zoning, it's been noticed and offered and those types of things, so we couldn't add a public hearing at the last minute. But even on other things with the Council, I'm very cautious on adding things once the agenda has started, because, again, we should have just done it ahead of time. I mean, again, very -- not very often is something so time critical that we can't wait until next week. But for you folks where it might be two weeks it could be. Yearsley: Okay. Thanks. Nary: Other questions? All right. I will turn it back over to Diane. Kushlan: Well, I'm going to maybe skip through some things, because -- and then -- given the time that we have got. We can go back a little bit and talk about the issue between different kinds of decisions that you make and the difference between policy and code and there are two categories -- I categorize them into legislative matters and administrative. Legislative are those actions that cover the entire city. They could be comprehensive plan amendments, zone changes, they affect most of the community or portions of it. Your specific plan adoption might be one of them. Administrative are those that are -- they are implementing that plan, they are usually decisions that are on a case-by-case basis or a site specific basis. Here is some examples. Amend the comprehensive plan, zoning regulations, if you are adopting a master plan of parks and recreation, your Ten Mile specific area plan. Those are all examples of legislative decisions. Administrative are site specific rezones, conditional use permits, variances, and plat approvals and under the Idaho statutes those items that are site specific and require public hearings are quasi-judicial and they have special rules which Bill has gone over most of those with you, but I'm going to go back into detail on that, because he made some good time on it, but it's the issue of conflict of interest, Meridian Planning & Zoning Special Workshop June 20, 2013 Page 19 of 25 unbiased decision making, ex -parte, which he mentioned, open meeting, public hearings, decisions on the record, and the requirement to adopt findings and conclusions for your decisions. So, we will skip all of those, because he did a good job on that. So, then, policy and implementation, there is some real distinctions between those. Policies are long range. They are visionary. They are aspirational. They are advisory. And zoning is really the law and it's very specific. It reflects current conditions. It's more regulatory and it should be implementing the comprehensive plan. Again, there is policies, our comprehensive plans, master plans, and specific area plans, and implementation of those is done through zoning, subdivision, use permits, site and design review. And this chart I really like, because it takes the next step after comprehensive plan and looks at all of those implementation or those administrative actions that you look at and as I mentioned before, zoning is really that most discretionary point and as you move from zoning down toward subdivisions, site design, conditional use permits, you get increasingly less discretion and if you look at your code you will see that as you go down this -- this line there is more and more standards and they are much more black and white. So, something to keep in mind that, you know, as you make decisions on use permits or subdivisions, the decisions about the zoning or the appropriateness of the zoning should have already been made or something that you're making concurrently with that decision. Anybody have questions about that? I have got some more details. I didn't think we had time for that tonight. So, here is the -- what LALUPA does about the relationship between the comprehensive plan and your zoning and your implementation act and the code -- and the code says that the actions must be in conformity, they should be in compliance. They should be in accord and not in conflict with the policies of the adopted comprehensive plan. Now, in the world of planning there is a doctrine called a consistency doctrine and in many states the comprehensive plan is -- sets the direction and every action of the city, whether it be land use changes, subdivisions, capital improvement plans, they all must be consistent with that comprehensive plan. That's not the case in Idaho. This language in our code is much more lose in terms of the direction of the comprehensive plan and that's been reinforced by case law and as you look at the bottom of the slide what a number of different cases had said about that relationship between comprehensive plan and zoning, is that it is determined on a case by case basis. There is not overarching fundamental principals that can help you in terms of the consistency. It should be based on a factual inquiry and this kind of underlying importance of having good findings of fact in the decision process and that an action to rezone a subdivision need not be strictly in conformity with the comprehensive plan and that noncompliance -- and there was a recent case up in Blaine county where the county denied a subdivision based solely -- the denial was based solely on the fact that the subdivision was not consistent with the comprehensive plan. The subdivision was consistent with zoning, but the zoning and comprehensive plan were not in sync and the court said that you cannot deny that subdivision based solely on the comprehensive plan designations. And so, finally, that the comprehensive plan is really a guideline for your decision making. So, it's a Meridian Planning & Zoning Special Workshop June 20, 2013 Page 20 of 25 place to start and many times, you know, it's going to run into some trouble with you, but it underlines the importance of having good zoning, if you're serious about that land use designation to have some zoning in place that carries that forward. Any questions about that? Is that what you needed on that issue from me? Okay. So, then, I want to turn to some comments about what makes good commissions, what makes good meetings, and what makes good decisions, and this is kind of based on my experience with dealing with a number of commissions and cities and counties over about 40 years, and, you know, I have worked with really great commissions and, unfortunately, some that weren't quite up to -- to what they should be. So, I have got some real opinions about this, but I just want to list what I think are important characteristics and talk about a couple of these in a little bit more detail. First of all is knowledge and I think to be a good commission you really do need to do your homework and it doesn't mean that you could memorize the Local Land Use Planning Act and your development code, but certainly have some familiarity with it and I think the best way to develop familiarity -- one of your veteran commissioners might be able to speak to this -- is that as you see applications come before the staff is going to cite the code provisions and the relevant requirements and that's the time to kind of maybe go back and look at those and look at them in the context of the chapter that they appear in, so you have a broader understanding of them. Certainly, you know, look at the comprehensive plan, know your codes, know the language of planning and this is where planners sometimes really can use a lot of acronyms and abbreviations and so we can get stuck in this planner use and if there is anything you don't understand be sure to ask our planning staff, you know, exactly what that means, because we can sometimes get caught up in that kind of language. There is some legal requirements. You know, we have got a lot of constitutional protections that we need to make sure that we carry forward in the decisions that you make and the actions that you take and tonight is a good introduction to that and certainly if you have any questions at anytime be sure to use your city attorney. Some knowledge of parliamentary procedures. If you have your own planning and zoning commission procedures be knowledgeable about those. And, then, this last item, which I'm going to spend a little more time on, is good dynamics. Knowing how to make decisions as a group. The art of asking questions. The art of how to build consensus toward a decision. So, those are all knowledge things that I think are important. Then listening -- and this is sometimes difficult, I know, because when you have long meetings being alert and keeping attentive all the time is really hard. But being sensitive to how the public is perceiving you on this part of the -- of the podium and making sure that you listen to all the different sides of different arguments with equal amount of attention. And as Bill said it's important not to make judgments before you come here. I mean you're going to get a staff report, there is going to be certain recommendations that are going to kind of lead you in one direction, but it's important that you keep your mind open, because until that public hearing is heard you really shouldn't be finalizing a decision yet. And, then, finally, watching for your nonverbal cues and I have got a couple of do's and don'ts here. You know, one is, you know, kind of leaning back and going to sleep. Hiding Meridian Planning & Zoning Special Workshop June 20, 2013 Page 21 of 25 behind your computer screens maybe so the tomatoes don't hit you. I don't know. You know, kind of drumming your fingers like this sort of anxious for people to move ahead. And sometimes you're not aware that you do these, so you want to -- you want to sort of, you know, be a little more conscious about it. When you are having your dialogue as commissioners and making your decisions, it's very powerful to the people that talked before you if you refer to their testimony, if you refer to Mrs. Smith said this and I take from that this. That really sends a great message to the public that you were really listening to them and to look them in the eye as they are sitting here and, you know -- you know, sort of make the motions that you're hearing them, not just, you know, being sort of blank stares at them helps a lot. Objectivity. And I think this is a really important characteristic to keep in mind. You really need to keep faith with that code. You aren't the elected officials that sometimes can take into consideration other things that are important to them and maybe not adhere to the letter of the law or the code. You're not in that position. You really are framed by what the code says. And that goes kind of somewhat to this next bullet is you many times have public here I know that don't know the code and they want you to take an action based on some other reasons that are not within the realm of the code and, you know, being able to speak to them about what the basis for your decision is and why you're making it and while you may be understanding of their point of view, why you cannot follow that because of the code, is a really important thing to communicate whenever you can. And, then, to keep your personal biases out. I know that, you know, you may not agree with maybe everything that's in the code, you might think that there is some stiffer standards or some looser standards that should be there, but until the code is really changed you really sort of need to get that personal opinion out of there and sometimes that's a difficult thing if you have strong ideas about things. And, then, the last -- the fourth one is avoiding what I call the slipper slope of irrelevant information and I know if you're on the commission you have heard this where people come and they are passionate about something and it's totally unrelated to the basis under which you make a decision. And so you have just got to be very strong and even -- especially when there is, you know, large crowds here. I know that can be hard, but you have got to be very -- very strong to not get swept into the emotion or their issues that aren't really based on the code. And, then, of course, being fair and impartial in all your decision making -- I know in working with commissioners there is always, you know, a developer that, oh, you hate to see that person and you know they have done bad work in the past, but you have to look at those applications in a very fresh way and try to not be, you know, influenced by maybe past history you might have with them or any other kind of baggage is what I call them. Another idea of collective decision making -- I know all of you were appointed to the commission because the Mayor and the City Council felt you were good people that would make great decisions and you probably in your business and your life are leaders in making decisions, but a lot of times I have seen commissioners appointed that have never worked in a group setting and never worked in a group setting when you had this public staring at you and you're going to have to make -- come to some decisions. So, Meridian Planning & Zoning Special Workshop June 20, 2013 Page 22 of 25 sometimes it can be real challenging. So, here is some guidelines in terms of dealing with each other and I don't know how well you all know each other, some of you probably have been on the commission a while -- you know yourself real well, but -- Freeman: Spaced us out depending on who likes who and who doesn't. Kushlan: But, you know, being respectful and courteous. You know, I -- I always tell the story about this very strong planning commission's chair that we had and she had this -- it was before computers, but she had made a list for 20 years of where the positions of each commissioner should be at each meeting and it always changed and we would do one meeting and, then, we would cross it off and, then, move the signs around and do the next one, except where there was one commissioner that she hated and she never sat next to him and so all of these lists never had him in that position and I don't know if he got it or not that he was never sitting next to the chair. But you know -- you know, you -- it was a silly example. But, you know, to be very respectful of your commissioners and to listen to their points of view, particularly if it's not the one that you have, that we don't air any personal grievances, either with them or with your staff. And don't surprise them. You know, you may want to -- if you have got a great idea, it might be something you want to vet with staff a little bit or talk with the chair unrelated to our application, of course, but don't surprise -- don't -- you know, if this great idea comes to you in the middle of a meeting, make sure you spend some time thinking through it before dropping it on anybody. And, then, finally, know in any group setting there is people that are very verbose -- can be verbose and there are some people that are very very reticent and I think those of you who are more comfortable speaking up, you know, you need to sort of what I call monitor your air time and make sure that you're respectful of those commissioners who, you know, maybe aren't as comfortable speaking. I mean in this kind of the role of the chair to make sure that everyone gets equal time, but think every member of the commission should take some responsibility for that as well. Hood: Diane, if I could -- we have about five minutes and I would like to give the commissioners about five minutes before the meeting, so I don't know if you -- Kushlan: Okay. All right. Well, I will -- Hood: Just a five minute warning. Kushlan: Okay. Great. There is some guidelines to a successful meeting and I will give you a handout on this, because I think you have really good -- all of these pieces in place, you have got great staff, you have got great information from the public in the back. I have also got a handout on these asking questions, because I think knowing the right kind of questions to ask the staff, the public, your fellow commissioners, can really bring forward a very robust discussion and Meridian Planning & Zoning Special Workshop June 20, 2013 Page 23 of 25 decision making process. So, let's just -- I will just go into this decision making piece and we will finish. Making decisions really starts at the very beginning of the hearing as you're doing active listening and you might be taking some notes and you're asking meaningful questions. So, those -- those things are kind of part of the decision process. And, then, during the commission discussion after the public hearing is closed and it's just all of you talking for the most part, be sure everyone gets to participate and don't try to poll towards some consensus and I will talk in a minute about how I think that can get a little bit difficult. And if you have a different opinion I think it's important that you express that, otherwise, people think you're consenting to the majority and I think sometimes it's helpful to express your opinion. It's okay to have a difference of opinion. I think that's really what democracy is all about. Again, monitoring your air time. Remember the record. Keep the record and keep to the code and I think it's important after you have -- the public hearing is closed, after you have asked staff questions, that it is really your time and you don't allow a lot of interruption from the public or from the staff. You really -- it's kind of your closed knit group here working toward a decision. Making motions. I think staff probably prepares motions for you. It's -- you know, it's important that you follow your parliamentary procedures in making motions or amending the staff's motion. Be sure to speak clearly and concisely and state your motions affirmative. I'm sure they have got them written out for you, so that you can follow that. And, then, just one motion at a time. Here is some traps to avoid and I have seen these all. One is what I call scatter brained storming and this is where there is a lot of ideas that are just kind of thrown out there at one time and that's great when you're doing brainstorming, but when you're trying to come to some decision I think it gets very confusing, especially for the person that's trying to follow the transcript. So, that's something to avoid. And, then, you know, the decision is really yours and I have seen a lot of commissions that get to a point where they go, oh, no. So, Mr. Nary, what do you think about this? Or as the staff and you kind of try to blow it off to the staff or the counsel and you really -- they can answer questions for you, but it's still going to be your decision to make. And, then, railroading and I don't see this happen too much, where there is kind of a force that kind of railroads over everybody and tries to get the issue decided before everyone is ready to really come to it. And, then, paralysis. This happens a lot in commissions, especially when you have really tough decisions, and there is really good legitimate reasons a lot of times to postpone an action, but I think you have to always be respectful of the developer and the citizens that came here looking for some decision, to not use your sort of -- oh, my gosh, we have got to make a decision -- to kind of take over. You really have got to bite the bullet sometimes and make those decisions. So, there were -- these are ten commandments for good decision making. This is developed by the Washington Attorney -- State Attorney's Association. Number one is one that I hammered before is you follow the code. Avoid politics. You're not the electeds. And hopefully none of you are running for office and using the commission as a platform for your election. Be politically correct and dignified all the time. Be very respectful as I mentioned. Consider all of the evidence. And make a good record and this is where the staff Meridian Planning & Zoning Special Workshop June 20, 2013 Page 24 of 25 and your council is going to help you provide written findings and conclusions, support your decision with real facts and evidence that were in the code, impose only lawful conditions and also conditions that can be enforced and do not try to become the staff. Don't try to, you know, be the technician, don't try to be the attorney, you're the decision maker, rely on them and, then, finally, in this quasi- judicial proceedings you really are sort of judges somewhat in a more informal way, but you really should think about that as -- in your demeanor. Do we have time for this or should -- Hood: Yes. Kushlan: Okay. You know, and as we mentioned, you make decisions based on the findings of fact and conclusions of law and so those mean understanding the code requirements and that those are prepared for you by staff. Identifying the facts that are relevant to the code and don't -- you know, don't talk about the facts that are irrelevant, even though the public might want you to. Link the facts to the conclusions and those conclusions must be supported by findings of fact. On the conditions in the decision, I see conditions -- and I'm sure you get these that are -- that are connected to time, they have got a specified who is going to enforce that. I'd like to suggest to commissions they avoid the laundry list of conditions, you know, don't throw in the kitchen sink on a project you're not really sure you want to approve. Make sure those conditions are really relevant to the issues that you're trying to mitigate and, of course, the law requires that those conditions have a relationship and that they be proportionate to the impact that you're trying to address. So, you know -- and, then, you know, this chart kind of links the findings of fact might support a number of conclusions of law, so just make sure that you have made those connections in your decision. So, five minutes of questions. I'm sorry I took so long. Freeman: Thank you. Yearsley: Any questions? Freeman: No. Yearsley: Okay. Kushlan: I have one page here and I think there is a number of really good references. The law firm of Givens Pursley has the only little handbook on land use practices in the state and they will give it to you for free or give you a CD on it, so -- I'm sure you have got it in the past, but if you're interested in getting details that's a good reference. And, then, there is some other references. There is a commissioner journal that I think the staff gets that is a really good reference. And a couple of books there. So, thank you very much. I appreciate the work that you do. I'm always in awe of volunteers that take on this job and you have a wonderful community and great staff to work with, so go out and do Meridian Planning & Zoning Special Workshop June 20, 2013 Page 25 of 25 good jobs. Thank you. Yearsley: Thank you. Before we close the meeting I do want to note for the record that Commissioner Rohm did show up at 5:40 for the meeting as well. So, with that can I get a motion to adjourn the meeting? Rohm: So moved. Miller: I second that. Yearsley: I have a motion and a second to adjourn the Meridian Zoning -- Meridian Planning and Zoning Commission Special Workshop. All in favor say aye. Opposed? Motion carries. MOTION CARRIED: ALL AYES. MEETING ADJOURNED AT 6:58 P.M. (AUDIO RECORDING ON FILE OF THESE PROCEEDINGS.) APPROVED STEVEN YEARSL Y - CHAKWAN DATE APPROVED ATTEST: A I U -t-1 "�ft JAY EE HOLMAN, CITY CLERK CORY�R'"�a,G CG s� l or � SDI e S 440 l�P rRFASUdB � ��� CMEDIDIAN,— \J PLANNING COMMISSIONERS / TRAINING lune 20, 2013 Presented By: Diane Kushlan, AICP Kushlan;j Associates The agenda material is anvaiea 4e and c0n ICIC- Meeting Tips g n'Tj, c est sr. 4—S, a-ess `- Having agenda in advance of the meeting is critical to successful meetings and decisions. Late materials should not be accepted unless time is available for your review. sten. 12 1 Page Always address your comments through the chair. This controls the proceedings, avoids confrontations, and helps in maintaining a clear record. Listening should not be just a time when you are waiting to speak again. Some of the best Be sure you have read all the materials before the meeting, reviewed the relevant code provisions and understand the issues. Call staff if you have any questions or don't have all the information you feel you need to make a decision. etaste0Ifty^'�N Meeting time is precious and should not be used that could be resolved with staff outside •,as ne co is Int.. for issues the meeting. advance W lvning. If you intend to bring up an important issue, alert a the chair and staff before the meeting. This is a common courtesy that will help staff prepare and avoid embarrassment. n a coal eagtmts time, to An idea rejected maybe presented later by the one who opposed it earlier. sSa Slate. V RUBS Following Roberts Rules of Order, established giber public hearing procedures and the Commission by-laws will avoid confusion, and the meeting will run more smoothly. M,Ir eowas and res � ti� 9. .o ber you reprd , senting the County. who co me before Yyou deserve courtesy and your who respect. Personal disagreements with your colleagues and staff should not be aired in public. sten. 12 1 Page Always address your comments through the chair. This controls the proceedings, avoids confrontations, and helps in maintaining a clear record. Listening should not be just a time when you are waiting to speak again. Some of the best suggestions will come from the least expected sources. itar your .lair time". Equal time should be available for everyone to speak. Remember even in the Supreme Court, you only get 30 minutes. Oe careful about informality. Using first names of audiences' members you know and the last ones you don't, gives an impression of bias. Demonstrate neutrality. Provide a neutral position before the public hearing. Especially during breaks in hot meetings, be sensitive to perceptions. Keep to the sublet. Keep focused on the issues, avoid the introduction of extraneous or irrelevant comments. This is especially important in the review of quasi-judicial items. m headlines. judge what you say as whether you would want it to be a headline in the morning paper. Leave the provocative, media catching comments for the elected officials. ReMe ber the record. Remember a record is kept of your proceedings, and minutes are taken. Clear and concise statements allow your position to be better understood by the minute taker, staff and a reader of the proceedings. nemember roles. The staff is there to provide you information and analysis for you to make the best decision possible. They are not the Commission and should not be asked to make a decision or be part of the deliberation on a decision. x m e►v¢ always dove it this way." 13 1 Page Silence may be interpreted by staff as agreement, and they make take actibn based upon that assumption. This simply does not work and makes you look weak and indecisive. Precedent is important, but it can be an impediment to new ideas and moving forward. VI Steps to Build a Better Commission -) pc t INS09we for E ucada /V local Govemn9eff Vej*ejeF, 1. Develop and adopt bylaws and procedures, and stick to them. Z. Prepare and maintain an adequate Comprehensive Plan, refer to it, and make decisions that are consistent with its policies and implement them. 3. Annually review what you are doing as a commission, how well you are doing it and how to do it better. 4. Outline a year's work on active planning and stick to it. Don't confuse development permit processing (reactive planning or plan review) with real planning. S. Ask to participate in preparing the planning agency's budget. 6. meet periodically with your City Council to exchange ideas and to assess mutual objectives. 7. Consider a public forum every year or so. Ask the people (your vclients") how things are going and what they want done (if anything.) esented to you. 8. Tell your staff what You want, how ommission thatyou want material waits for he staff totellyou what to Don't be a passive e do next. 9. Attend some courses on new planning techniques and expect your staff to do the same. 10.Tour about as a commission to see what others are doing. out how many light years ahead Sometimes you will be lifted up ¢oa d sometimes You'll get some ideas of your neighbors you really are, worth borrowing. 11. Lobby for good planning. if you don't, who will? 12.Take time to orient new commissioners to he job. 19 1 Page Recipe for a Successful Planning Program #1 Plans and Policies ❖ Comprehensive Plan ❖ Strategic Plan ❖ C I P ❖ Growth Management policies •'• Annexation policies ❖ Procedures •'• Tracking #2 Implementation Tools •'• Zoning ❖ Subdivision regulations ❖ Engineering standards •'• Development agreements •'• Design review •'• Economic development ❖ Housing programs ❖ Resource protection •'• Infrastructure investment #3 Systems ••• Budgeting ❖ Mapping #4 People CITIZENRY PLANNING AND ZONING COMMISSION ❖ , Workhorse for the Council •'• Positive and meaningful involvement ❖ ❖ Reasoned and supportable Proactive not reactive recommendatiQns ❖ Advisory - not the politicians ELECTED OFFICIALS STAFF •'• Provide leadership and direction ❖ Technical expert, communicator, •'• Set priorities facilitator , ••• Make decisions ❖ Strategic thinker, problem solver •'• Communicate and facilitate ❖ Support for the commission - accountable to the elected officials ❖ Political astute - not political Mix Together and Work as a Team! 20 1 Page Glossary of Frequently Used Terms Comprehensive A comprehensive plan is a document containing Plan policies that guide land use and development in the City. A Comprehensive Plan is sometimes referred to as a city's constitution or charter governing the direction of future land uses. In Idaho, the plan shall include fourteen components with a statement of existing conditions, trends, desirable goals and objectives for each component. Conditional (or These are uses that are not permitted outright, but Special) uses may be allowed in a zoning district after certain conditions are met which are designed to safeguard surrounding neighboring property. Due Process Due process means all parties were: provided reasonable notice of proceedings, treated fairly and equally, provided access to records and to information used in the decision-making, provided a fair opportunity to be heard before a decision is made, and given a right to submit and challenge evidence. Ex parte contact An ex parte contact is any written or verbal communication initiated outside a regularly noticed public hearing between a decision-making official (Planning and Zoning Commissioner) and a party of interest in the action. Highest and Best This phrase is often used to express an assumed right w Use to obtain the maximum profit from using and developing land. However, the term is better defined as the most appropriate use for a particular site in terms of services, location, surrounding land uses and other considerations in the public 'interest. Planning regulations such as zoning limit the use of land, allowing less than maximum profits to owners but minimizing costs to the community. There is no constitutional right to use land in order to maximize profits. 211 Page Non -conforming got A lot that existed prior to the adoption of a change in zoning. For example, lots become nonconforming because they are too small or too narrow under the requirements of the new zoning standards. They become lots of record under the new zoning and can be built upon as long as the new requirements are met. A use or structure that existed prior to the change in Man -conforming zoning that no longer allows the use or structureo use or structure Usually, non -conforming uses or structures are allowed to continue, but are not allow to be expanded, substantially altered or replaced with another non -conforming use or structure. Public 'Hearing A meeting of the commission held to obtain public input on a proposed action. Decisions are usually made at the time of the public hearing, or can be made at a later time. Public hearings are required for most business that comes before the Commission. Quasi-judicial Quasi judicial proceedings have two characteristics: (1) the action is required by state statue to include: a public hearing, a transcribable record, written findings, conclusion of law and decision; and (R) the action is on a specific application or permit. Quasi-judicial actions are distinguished from legislative decisions, which have broad application and affect multiple properties. Subdivision A tract of land divided into five (S) or more lots, parcels, or sites for the purpose of sale or building development, whether immediate or future. Taping An action by government that results in the public acquisition of property or a severe decline in the value of the property. A taking typically results when land use regulations are so Severe that they substantially or entirely eliminate a property owner's profit, use, or enjoyment of his/her land. Variance A waiver of the provisions of the zoning code when a strict application of the code would cause exceptional, practical difficulties or undue hardship to the property owner. Property standards in the code are adjusted because of the specific location, 22 1 Page topography, shape, size, or other environmental features of a lot that make it impossible to comply with the zoning regulations. Zoning Zoning is an exercise of the City's police power to protect public health, safety, and welfare of its residents. Through zoning the City is divided into districts (or zones) within which permitted and special uses are allowed. Zoning also includes regulations on lot size, building bulk and placement, density and other regulations. Site development or construction must be consistent with the zoning before a building permit is issued. Zoning consists of a map of districts and the code that govern uses and development within each district. What is the relationship between the Comprehensive Plan and zoning? A comprehensive plan is an expression of the long- term city goals and policies that address a broad range of concerns. Zoning, subdivision and other development regulations involve the immediate regulation of the physical characteristics and use of land. Once a Comprehensive Plan is adopted, the development regulations should be consistent with the guidelines in the Plan. E 23 1 Page CiWE IDR IAN�3 PLANNING COMMISSIONERS' TRAINING June 20, 2013 Presented By: Diane Kushlan, AICP Kushlan I Associates • A primer on Idaho Local Land Use Planning Act • Types of decisions and rules for quasi-judicial decisions • The distinction between policies and codes • Conduct of meetings and decision-making Authority to Plan and Zone Cities and Counties are Creatures of the State • The legislature has the absolute power to change, modify, or destroy local government powers. • To those powers expressly granted. • Those fairly implied or incidental to expressed powers. • Those essential to the accomplishment of their purpose. • Any fair reasonable doubt about the powers of the city or county is resolved against the local jurisdiction • Idaho has been ranked 50m in the limitation on local discretion. 6/20/2013 1 Idaho Authority to Plan Grants police power to cities • The police power includes the authority to zone. • Mandates that cities and counties plan and implement plans • Standards and processes for subdivisions • Impact Fees for financing public improvements • Authority for cities to annex • Authority to create easements that restrict land use ❑ An exercise of the police power to protect the health, safety and welfare of the community. ❑ The broadest, most discretionary, authority granted to local governments. ❑ The ability of government to 'T restrict and regulate private i yL action for the common good. ❑ Protects property values, community character and unwanted encroachments on private property. Local Land Use Planning Act (Idaho Code �67-65) / ~ The power to plan and the Trir statutory guidelines to follow. �' r �'LnN 6/20/2013 2 Ll Adopted in 1975 ❑ Champion was Governor Andrus ❑ Introduced into the Senate by Senator Risth' ❑ Other planning bills not passed ❑ Implemented with state support out of the Office of Planning and Budgeting ❑Amended many times since adoption. The Local Land Use Planning Act (LLUPA) Idaho Code ;67 65 ❑ Protect property rights ❑ Ensure adequate public facilities, especially schools ❑ Protect sensitive and natural resources ❑ Encourage urban development in cities L) Avoid overcrowding ❑ Ensure that development is compatible with the land ❑ Protect against hazards 6/20/2013 C ❑ Every city and county shall exercise the powers conferred by this chapter. ❑ Legislative bodies (City Council) may delegate certain responsibilities to a Planning and Zoning Commission ❑ Legislation is silent regarding not planning. ❑ Prepare and implement a Comprehensive Plan. ❑ Adoptordinances forzoning and subdivisions. ❑ Adopt procedures for permits. ❑ Adopt standards for development. ❑ Provide for notice, public hearing, and record of hearings. ❑ Issue decisions in the form of findings of fact and conclusions of law. ❑ Create and maintain a transcribable record of all proceedings Required Elements in the Comprehensive Plan J Property rights ❑ Population ❑ Schools ❑ Land Use ❑ Land Use Map ❑ Natural Resources ❑ Hazardous Areas ❑ National Interest Electric Transmission Corridors ❑ Public Services, Facilities, & Utilities ❑ Transportation ❑ Recreation ❑ Special Areas or Sites ❑ Housing ❑ Communitydesign ❑ Agriculture ❑ Implementation ❑ Afuture acquisitions map (optional) added by the City or County 6/20/2013 0 6/20/2013 ❑ Authority to establish procedures for transfer development rights (TDR's) ❑ Authority and procedures to adopt emergency and interim ordinances and moratoriums. ❑ Areas of city impact. ❑ Provisions for planning and zoning in annexed areas. ❑ Provisions for residential care facilities. ❑ Provisions for the siting of manufactured homes ❑ Use of ground surface water for irrigation. ➢Can not delegate authority to adopt ordinances and Comprehensive Plans ➢Meridian City Planning and Zoning Commission Duties are set forth in City Code: 1. Provide for citizen meetings, hearings, surveys, or other methods to obtain advice on the planning process, comprehensive plan, and implementation; 2. Conduct informational meetings and consult with public officials and agencies, public utility companies, and civic, educational, professional, or other organizations; 3. Promote a public interest in and understanding of the commission's activities; 4. Make recommendations to the council concerningthe comprehensive plan, planning process, or implementation of the comprehensive plan; and S. Conduct public hearings and makedecisions and recommendations based on the required findings and standards tothe city councilfor applications in accord with the code. Recommending Decision Making Application Body Body Process Accessory use for daycare, family None D N Accessory use, home occupation None D N with customers, clients, and/or employees Accessory use, home occupation None D A with no customers or clients Administrative design review None or design D A professionals review committee Alternative compliance None D A Annexation and/or rezone PZ cc PH Certificate of occupancy None D A Certificate of zoning compliance None D A ity council review None CC PH Comprehensive plan amendment PZ cc PH Conditional use PH Conditional use (concurrent with PZ CC PH anncxatlon, rezone, preliminary plat, and/or combination plat) Decision-maikers' roles • Elected • Appointed Paid • Leadership Volunteers • Technical expert • Provide direction Workhorse for Communicator • Set priorities electeds Facilitator • Make decisions Make Strategic thinker • Communicate recommendations Problem solver • Political Make decisions Support for • Advisory—not electeds and political commission • Make decisions • Political astute -not political of Eanein .Decislons Legislative Actions that set values, adopt standards, rules, mops, that affect all or a significant portion of the population. Administrative Actions that enforce or administer the legislative decisions on a case by case or site specific basis. . Types of legislafte and Legislative Comprehensive Plan adoption •:• Comprehensive Plan text amendment •:• Zoning regulations :• Subdivision regulations •:• Functional plans ❖ Geographical plans :• CIP Administrative •:• Land use map amendment (site specific) •:• Re -zone •:• Conditional use permit •:• Variance ❖ Plat approval Administrative actions requiring a hearing and decision on the record are quasi judiciaY decisions 6/20/2013 2 Quasi-judicial action Administrative actions requiring a hearing and decision on the record are "quasi-judicial" 'decisions • No economic interestin decision • Disclose in advance • Step down- no participation in the proceedings • Quorum required • Public notice • No sequential meetings • Meeting open to the public • Actual or display bias • Must be impartial and disinterested • Notice required • Right for individualsto be heard • No discussions outside the hearing • Disclose in quasi-judicial (OK in legislative decisions) • Transcribable record • Individuals identified • Record of all written materials, maps and exhibits 6/20/2013 7 Policy and Implementation • Long range and general • Visions • Aspirations for the future • Advisory • Based on legislation • Sets direction for zoning • Specific • Reflects current conditions • Regulatory • Based on constitution • Implements the Plan Policy and Implementation • Comprehensive Plan • Master Plans • Specific Area Plans • Zoning • Subdivision • Use Permits • Site and design review Policy Implementation • Sets framework for development • First regulatory step • Allow for review of certain uses that may have impacts on surrounding uses • Creates the way for property to be bought and sold • Ensures adequate public facilities and buildable area J •Ensures compliance with that specific development standards 6/20/2013 D: Policy and Implementation Relationship of Plan with Codes What the LULUPAsays: Actions must be in: • conformity ��� • compliance •accordance • not in conflict with the policies of the adopted comprehensive plan. What the courts have said: • determined on a case by case basis • based on a factual inquiry • need not strictly conform • non-compliance cannot be the sole basis for denial •merely guidelines for guiding zoning decisions. Characteristics of a Successful Commissioner • Interest in planning Time Few conflicts 4"Est • Ability to speak clearly and concisely ls/ s Knowledge Abilityto Listen Objectivity Ability to make collective decisions • Idaho Local Land Use Planning Act} • Comprehensive Plan • Zoning and subdivision code • The language of planning K • Legal requirements: due process, equal protection, property rights conflict of interest, open meetings, ex parte communication. • Parliamentary procedures; P & Z Rules of Procedures • Group dynamics: discussion, asking questions, consensus - building decision-making. 6/20/2013 7 Listening •:• Sensitivity to the public's perspectives. •:• Hearing all the sides of an issue with equal attention. 4 -Not making judgments before all have been heard. Watch your non-verbal clues Do's and Don'ts of Non-verbal Cues Don'ts • Slouching/leaning back • Chatting with colleagues • Drumming your fingers • Nose in the notes Do's • Refer to testimony • Refer by name • Look 'em in the eye • Nod affirmatively Objectivity • Keep the faith with the code. • Not swayed by public pressure. • Keeping personal bias out. • Avoiding the slippery slope of irreleva information. • Fair and impartia i 6/20/2013 10 INEollective Decision-making (JNf1 AtAht Ai �knJa.. IOHClUSK1+5 [�u 4ET rK0`. 1Nf 5•r•E Ntii is :! •w0[A ,Y FAatf YW'CAM bF' liYn iMi S1Vf p • Respgctful and courtesy. • Listen. • Do not air personal grievances in public. • No surprises. • Monitor your "airtime". !l � Successful Meetings 1. Preparation. • Have time to prepare. • Read and review all the material. • Ask questions. • Jot down notes. 2. Staff Support • Timely • Accurate Objective • Clear and concise 6/20/2013 11 Successful Meetings 3. Agenda ■ Available ■ Followed 4. Minutes • Summary action minutes only • Do not waste time on minutes S. Role of Chair • Most critical role • Sets the tone and maintains control • Maintain perspective, big picture ■ Mo ale b .i�der, cheerleader, create cohesion, bridging I�Ifferences • Expert in parliamentary procedures Successful Meetings 6. Public Hearing ■ Have rules, available to the public and stick to them J Introduction J Staff Report J Questions of staff — no opinions J Public Hearing- hearing is dosed J Additional questions of staff or clarification J Commission Discussion J Commission Action • Keep it formal but comfortable ■ Speak through the chair 7. Asking questions S. Do not ask questions of staff during the public testimony The Art of Asking QuestlomLIAL ■ What other alternative/conditions did you consider?� ■ What are we trying to accomplish with this requirement/code policy/regulation? ■ What has been the precedent on this type of request? ■ Will you explain the process followed on this application? ■ What feedback have you received from the residents? ■ Does the applicant support the recommendations? Asking of the Applicant ■ What are your objectives? ■ Can you offer other suggestions/conditions/project changes in response to the issues raised? ■ Do you support the conditions/recommendations? 6/20/2013 12 The Art of Asking Questions Asking of the Public ■How will this proposal affect you? ■ What are your concerns? ■Do you support the proposed conditions? ■What other changes/conditions can you suggest? Asking of Colleagues ■What is your opinion about this item? ■What do think this action will accomplish? ■Would you please elaborate on you position? Decision-making 1. During the hearing • Active listening • Take notes • Ask meaningful questions 2. During the Commission Discussion • Participate • Do not poll- work toward consensus -not full agreement. • Express disagreement— silence means consent. • Ask for clarification • Monitor "air time". • Remember the record • I is Commission Discussion -not a dialogue with staff or Ns public. Decision-making 3. Making Motions Staff prepared motions • Follow parliamentary procedures Speak clearly and concisely Stay on the subject State motion affirmatively, "I move that we...:' 11 One motion at a time. 6/20/2013 13 Decision-making Traps to Avoid •:• Scatterbrainstorming- one idea is followed by another without resolution until one is found the group likes. •:• Looking to authority- the planner, the chair, the attorney. •:• Railroading -one group or individual forces the issue before others are ready. to Paralysis- be honest about the reason for delay Ten Commandments of Good Quasi-judicial Decision-making 1. Follow the Code I VI 2. Avoid politics 11 Vil 3. Be politically correct and dignified III VIII 4. Consider all the evidence I V I X S. Make a good record V X 6. Make written findings and conclusions 7. Support the decision with real evidence 8. Impose only lawful conditions 9. Do not invade the province of staff 10. Think like a judge, act like a judge and decide like a judge. Rules for Finding of Fact, Conclusion of Law, Conditions and Decision Findings of Fact /Conclusions Conditions and Decision ❑ Understand the code ❑ Conditions requirements Connect to time or action ❑ Identify facts relevant to the Avoid the grocery list code; disregard what is not approach relevant to your code regulations. Nexus and proportionate ❑ Link the facts to conclusions ❑ Decision must be supported of law bythe findings, conclusions, ❑ Conclusions must be and conditions support bythe findings of fact. 6/20/2013 14 Findings of Fact and Conclusions of Law Linking the conclusion with those facts that support the conclusion Findings of Fact Conclusions of Law 1. Fact 1. Conclusion 2. Fact 2. Conclusion 3. Fact 3. Conclusion 4. Fact 4. Conclusion 5. Fact 6. Fact It's QUESTION TIME H Piwourms ❖ Idaho Land Use Handbook, Givens Pursley attorneys at Law; 2007 ❖ Association of Idaho Cities- www.idahocities.ore •8 American Planning Association (APA) -www. olannine.ore ❖ American Planning Association Idaho Chapter- htto://idahoaoa.org ❖ Planning Commissioners Journal-www.olannersweb.com d• The Commissioner -APA quarterly ❖ Thelob of the Planning Commissioner, Albert Solnit. ❖ The Planning Commissioners Guide, David J.Allor ❖ The Citizen's Guide to Planning, Christopher Duerksen 6/20/2013 15 OPEN MEETING AND ETHICS IN GOVERNMENT LAW Bill Nary. City Attorney June 20, 2013IDIAN'-- D�MO DOES THE LAW APPLY TO THE PLANNING AND ZONING COMMISSION? All meetings of a governing body of a public agency shall be open to the public." • "Governing body' includes commissions that are authorized to make recommendations to a public agency. DOES THE LAW APPLY TO THE COMMISSION'S SUBCOMMITTEES? Commission recommendations are based in part on deliberations and information exchanged within subcommittee meetings Article III, section 3 of Commission bylaws "Subcommittees .shall followall public meeting requirements.' THE ATTORNEY GENERAL SAYS: "The requirement that the Open Meeting Law be complied with... should not be evaded by holding smaller meetings with less than a quorum present or by having a go-between contact each of the governing body members to ascertain his/her sentiment" WHAT DOES THE OPEN MEETING LAW SAY? All Commission meetings shall: Be open to the public Provide the opportunity for all persons to attend Be noticed 48 hours (regular) or 24 hours (special) prior to convening • Be memorialized in summary minutes WHAT IS A "MEETING"? Meeting= Convening + Making a decision or Deliberating toward decision Decision= Quorum (3/5 or %+ 1 of the total number currently appointed) + Action Deliberating=Receiving information Exchanging information Exchanging opinions WHAT IS A "MEETING"? QUIZ: Four Comm talk about BSU No. "Meetin deliberation; WHAT IS A "MEETING"? c party. They IN EP, IDIAN DAMO QUIZ: Four Commissioners see each other at a dinner party. They talk about whether the Commission should look to take further study of comprehensive plan designations within the City. Is this a meeting") • No. "Meeting" does not include informal gatherings, and this is not deliberation toward a decision. • BUT: If the Commissioners are later asked to make a decision regarding this issue, the contents of this discussion should be disclosed on the record. E IDiZ IANs-- WHAT IS A "MEETING"? QU IZ: Four Commissioners see each other at a dinner party. They talk about requesting a consultant to provide analysis on a South Meridian-Kuna comprehensive plan that is on their upcoming agenda. Is this a "meeting • Yes. While °meeting° does not include informal gatherings, whenever a quorum convenes and deliberates, even informally, this is a "meeting." ___ 01(r IrnANk- WHAT IS A "MEETING"? QUIZ: Two Commissioners see each other at a dinner party. They chat about the CUP application that is on their upcoming agenda. Is this a °meeting°7 • No, because a quorum is not present. • BUT: this conversation should not happen; it is 'deliberation," and violates the purpose of the law. if not the letter of the law. SETTING OR CHANGING THE AGENDA Idaho Code 67-2343 (4)(a)(b)(c) Requires that agenda be set 48 hours prior to the start of the meeting. Any change from the posted agenda can, be added at the beginning of the meeting, but any changes after the meeting begins must be separately noted and a good faith reason for the change must also be stated on the record. No -openmr'ke'discussions HOW SHOULD I HANDLE EX PARTE INFO? Ex Parte Communication = Receiving, off the record, information or opinion regarding a matter pending before the Commission • Informal conversations with citizens Unsolicited e-mail or voice mail opinions Individual site visits, research, interviews THE IDAHO SUPREME COURT SAYS: E governing body from the public essentially a second fact -g session proper notice." • Rule of thumb: Try to a oid ex parte communications about matters that are pending a discussion at a meeting. MUST WE ACCEPT PUBLIC TESTIMONY? The Open Meeting Law does not require that the Commission take public comments or testimony. BUT: The Commission may allow or request public comments or testimony L'IIDZ IAN" DA CAN WE VISIT THE SITE OF WHAT WE ARE TALKING ABOUT? • No,and Maybe Commissioners cannot specifically go to a specific location that they know is the subject of a matter pending or likely to pending before them for a decision or recommendation; UNLESS Notice and a Quorum are present. Now it becomes a meeting. CAN WE VOTE BY WRITTEN BALLOT? The law specifically prohibits decision by "secret' ballot or anonymous voting. Any written ballots must identify the voter and be available to the public. Written ballots are discouraged; voice votes specifically comply with the Open Meeting Law. WHAT IS AN EXECUTIVE SESSION? Executive session =A closed meeting. There are 10 specific exceptions to the open meeting requirement. It is unlikely that this Commission would conduct deliberations under any of these exceptions other than that for the purchase of real property. If you foresee the need to employ an exception to the Open Meeting Law, please consult your attorney in advance. f �1,11'I+11NA\� THE ATTORNEY GENERAL SAYS: If in doubt, THE MEETING! CAN WE MEET BY PHONE? The law specifically allows meeting by telephone conference call IF: Notice requirements are met At least one Commissioner is physically present at the noticed location The communications are audible to all attending • Voting is not secret CAN WE MEET BY E-MAIL? No. E-mail deliberations violate: Notice requirement Physical presence requirement Audible communications requirement Secret voting requirement WHAT IF WE VIOLATE THE LAW? Any action taken in violation of the Open Meeting Law is void. Subsequent actions are also considered tainted and therefore void. FIX: Do -over, from the beginning. If an action is knowingly taken in violation of the Law, the actor is subject to being individually sued and fined, and may be subject to criminal prosecution. Any affected citizen can compel a suit. IS THERE A CHECKLIST? Page 20-22 of AG OML Manual ■ Notice done ■ Agenda complete ■ Minutes taken ■ Minutes available Legal staff can answer questions COMMISSIONERS AND GOVERNMENT ETHICS Idaho Code 18-1361A Commissioners cannot engage in business witn the City UNLESS. The contract is competitively bid, and The Commissioner is not involved with cleating the specs or approving the contract; and The 6'ommissionermakes full dlsclosureto the City Council of his/her intention to bid oin a contradt' and .y Botheviolation of the open bidding process occurs by the. �missioner- QUESTIONS? • CityAttomey's Office. 898-5506 • 13,1111ary.City Attorney �, k • Ted Balyd,Deputy City Attomey, • Emily Kane. Deputy CityAttorney • Andrea Pogue, Assistant City Attorney CiVI E IDIAN*-- toaHo