At their meeting Tuesday, December 11, 2007,

Charlottesville Planning Commission

voted 4-3 that a second vehicular crossing of the Downtown Mall was consistent with City’s recently updated comprehensive plan.  Commissioners expressed interest in holding a work session at a future meeting to prepare a recommendation as to whether a permanent crossing should remain at 4th Street East, where it has been piloted over the past year, or moved to 5th Street East.

However, heading into the evening’s discussion, it was not clear who would be chairing the meeting or who would be voting on the matter, if anyone.

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During 2007, the City Planning Commission has begun holding short meetings in advance of their regular meeting in Council chambers.  During the half hour “gathering” Tuesday, held in a small conference room down the hall from chambers and not broadcast on local TV, Chairman Bill Lucy asked his colleagues whether they even wanted to vote on the mall crossing matter.  A majority of the commission expressed support for holding the public hearing, but deferring any action.  Lucy also announced that he would not act as chair during the discussion of the mall crossing.

Discussion in the pre-meeting focused on the appropriate role of the Commission and the meaning of impartiality and recusal.  Commissioner Cheri Lewis told her colleagues she thought several of them should recuse themselves from the vote since, in her opinion, they were not acting in the spirit of the

Commission’s operating guidelines

which called for impartiality.  There was some discussion about whether Lucy was recusing himself from the matter or just stepping down temporarily as chair.  Rich Harris, Deputy City Attorney, advised Lucy that if he planned to vote on the matter in the future and participate in the discussion, then he was not recusing himself.  Commissioners could recuse themselves if they had a conflict of interest on a matter on the agenda.  Typically a recused member leaves the room to avoid being a participant.

A partial transcript of the pre-meeting discussion can be found at the bottom of this post and the complete audio is included above as a podcast.

Later in the evening, when the commission reconvened after a recess to begin their public hearings, Lucy announced that the rest of the meeting would be presided over by Farruggio, the Commission’s Vice Chair.  No explanation was offered to the public at this point in the meeting as to why Farruggio was made the presiding officer over all the evening’s public hearings.

When the mall crossing matter was before the Commission, Lewis raised a point of privilege and asked whether three members should be participating in the mall crossing discussion.  Lewis cited the following clause in the Commission’s operating guidelines:

“Members shall discharge their duties and responsibilities in an impartial manner, without favor or prejudice toward any person or group. When making a decision or recommendation Members shall give due consideration to the recommendations of the professional planning staff, but shall ultimately be guided by good zoning and planning practices and the public health, safety and welfare.”

Approved May 8, 2007

After some discussion by the commission, Farruggio told the public he would not be recusing himself from the matter and then he asked Pearson and Lucy about their intentions.  “I feel I can be impartial and I would like to continue to participate in this meeting,” said Pearson.  Lucy said he could also be impartial but that participation in the public hearing raised other questions for any commissioner.  “The question is whether you are going to bring your mind to the subject and think about it,” said Lucy.

Lewis again voiced her concerns about the exchange of e-mails in advance of the meeting and she suggested that such action should be avoided in the future on matters coming before the Commission.  At this point, the Commission started their public hearing on the mall crossing matter which resulted in the 4-3 vote (Farruggio, Lucy, and Mitchell against) that the crossing was consistent with the comprehensive plan.

Brian Wheeler

Charlottesville Planning Commission Gathering

, December 11, 2007, 4:00 – 4:30 PM



Bill Lucy, Chairman

Mike Farruggio, Vice Chairman

Genevieve Keller

Cheri Lewis

Hosea Mitchell

Michael Osteen

Jason Pearson

Staff: Missy Creasy, Jim Tolbert, and Rich Harris

Lucy – “As you know this is called a gathering… we do need to have minutes as this is a public meeting.”

Lucy – “We have a very long agenda as you know… Beyond the issues of time, there are the issues of comprehension and substance and uncertainties about items, public hearing items 4 [building heights] and 5 [vehicular mall crossing] in particular.  Do we have any preliminary sense of how many members can imagine themselves in some realistic way being ready to vote on the zoning ordinance tonight [related to the downtown building heights]?”

Tolbert – “I would like to take that off the table, because I have told people I am not going to be asking you to do that… I would not be asking because of all the comment.  What I asked in the email that I sent out was that we have the hearing tonight and we take all the comment, but that because of all the volume of letters that we handed out tonight [to each commissioner] …We would have the hearing and determine whether we need a work session.”

Lucy – “What about the downtown mall?  Is there anyone who can imagine themselves voting on [the location of the vehicular crossing] at 4th or 5th, on comprehensive plan consistency, and what else, oh $950,000 for the crossing?”

Lewis – “Are you considering deferring this whole thing?”

Lucy – “Yes I am, sure.”

Lewis – “I would be, because of the fact that this has been publicly noticed, I wouldn’t pull public hearings on either of those.  Whether we vote or not is a different thing.”

Lucy – “I didn’t say cancel the public hearings.”

Lewis – “I said are you thinking of deferring and you said, ‘Yes.’  I define defer as we are knocking it off the table right now because we are discussing it at 4:15 and I think that is inappropriate when it has been publicly noticed.”

Lucy – “That wasn’t the question.  So no comments then.  O.k. let’s move on.”

[several Commissioners express their confusion]

Pearson – “As I see it, we are here gathering to get some sense of issues, which is my understanding of what Bill [Lucy] was asking. What’s the likely direction of where we are likely to end up? What I heard in the term defer was the possibility that we would have a hearing but we wouldn’t necessarily vote on these issues. And you were trying to get a sense as to how many of us concurred with that sense.  I concur with that sense, but I am going to hear a lot of comments and I am not sure I am going to be ready to vote given the number of comments we have been getting on a rolling basis all the way up to the last minute”.

Mitchell – “The 4th vs. 5th, I have no clue.  On the Comprehensive Plan consistency, I’m pretty certain.”

Rich Harris, Deputy City Attorney – “On this topic there are a few things I want to mention to everybody. Hosea [Mitchell], you just mentioned about the Comprehensive Plan consistency… I want to reiterate that it is a two tier process for this downtown mall crossing.  First decide whether it is in accordance with the comprehensive plan.  After you get that under control you can decide whether it is going to be 4th, 5th, or somewhere else.  Just want to make sure everyone is clear about that process.”

Tolbert – [Clarifies that question from City Council was whether the vehicular mall crossing should be at 4th or 5th street, not anywhere else.]

Harris – “The other public hearing about the downtown zoning… I want everyone to understand that any legal advice given to you folks, that’s legal advice between me and my client, which are you guys.  And attorney-client privilege is confidential, not for disclosure or sharing.  I want you to understand that the privileges are in your hands.  Does everyone understand that?”

Pearson – “By that you mean it is at our discretion whether we share those communications or not?”

Lewis- “ That’s correct.”

Harris – “That is correct. If you are going to do so, I would make the recommendation that we side together on that…otherwise I can’t break up the fight…” [laughter]

Lucy – “In terms of managing the overall agenda, I have two thoughts.  One is that, when we have a really long agenda, like tonight, I think we should consider as a matter of common practice the sharing of the chairing and the possibility that the Vice Chair would chair some part of the meeting.  And in particular, I want to suggest that that would be useful tonight because of this rather interesting issue that has arisen, and I would prefer not to make that a diversionary subject tonight.”

Lewis – “I think if you chose to recuse yourself Bill you should publicly announce that.  If you are exhausted and it is 2:00 in the morning and you don’t feel like you can chair towards the end of the agenda and Mike can help, then that is another matter.  For public transparency, I think on the record you should…”

Lucy – “Well I am not going to recuse myself. So we have only 10 minutes [before the 4:30 meeting starts] are there questions about…”

Farruggio – “Is that going to become a contentious issue on TV tonight if Bill does not recuse himself?”

Lewis – “I am going to ask him to recuse himself publicly, yes.”

Lucy – “Recuse myself from being chair or from…?”

Lewis – “From chairing on that matter [the downtown mall vehicular crossing], from conducting a public hearing on that matter.”

Farruggio – “Alright so I’ll take over for that matter.”

Lucy – “Well or maybe earlier, that’s the question, maybe it should be earlier.  Maybe we can chat about it on the way up.”

Farruggio – “If Bill has discussion, is that going to be alright?  Will anyone object to Bill discussing or Bill voting?”

Lewis – “From what I understand, once you pull yourself out…you can’t participate in the discussions, you can’t vote… Recusal is different than a conflict though…”

Keller – “Is recusal necessary?”

Farruggio – “I don’t know if it is necessary, but I want it to be clear whether or not that if Bill is going to recuse himself from chairing that he going to be not discussing the issues, not voting on the issues.”

Lucy – “I think it is just a useful, simple device…”

Lewis – “A chair chairs the meetings, that’s the primary purpose.  You can’t just step aside. And I don’t think recusal is an admission of whatever, it’s just a procedural courtesy to make sure that as a public body we are conducting ourselves the way we should.”

Farruggio – “Let me put this on the table, then ask you a question, because what I want to avoid is Bill recuses himself from chairing, then I take over chairing, and then we start having some discussion, or we do end up coming to a vote, and then someone objects to Bill even having discussion and or voting, and that’s what I think we should decide upon now before we go out in front of the TV camera and we are public.”

Lewis – “Well we are in a public meeting now.”

Tolbert – “Recuse is different from stepping down as chair and letting someone else chair…”

Harris – “Can I ask what the goal is here?”

Lewis – “I guess to that end, I’ll present that memo to you guys too.”

Lucy – “The goal just be to minimize contention I guess.”

Harris – “So are you still looking to vote on this matter?  Or whenever the vote does occur are you looking to vote on it?”

Lucy – “Yes.”

Harris – “So you are not planning on recusing yourself from this matter.  I wasn’t sure where that terminology came from.”

Lewis – “Well should we talk about this now instead of on TV?  We adopted, all of us but Jenny [Keller who joined commission afterwards], six months ago, operating guidelines… for this organization.  Number three on those guidelines says that we all need to be impartial.  I have just handed [Pearson & Farruggio] a memo and I have also discussed with Bill, as a courtesy real-time, and said that both of them have said by e-mail that they are opposed to this crossing.”

Lucy – “I have not said that.”

Lewis – “Bill appeared before City Council when this was voted on last time.  What I was told was that Bill’s comments were opposed to the vehicular crossing.  Bill says that that is not true.  Bill was quoted in The Hook as being opposed, but Bill says that those were opinions when this was last considered and he was on the commission.  My concern is the guidelines say that we need to be impartial.  It is a tough call, because we all come here with our biases, our talents, our subject matter preferences…We don’t come here as clean slates, I realize that.  But I have never in my six years on the commission seen members express publicly their personal preference about the outcome of a vote that was coming before us at a public hearing.  This is not a site plan.  This is not something where we don’t have a public hearing.  We have a lot of people interested on both sides and this is a public matter.  And I think that if it is not a fifty-fifty chance that the members who have expressed a public opinion being opposed to this crossing… if there’s not a fifty-fifty chance that you can walk in there and have your minds changed by something that is said tonight then you should recuse yourself because you are partial and you have expressed your partiality publicly.”

Pearson – “Can I respond to that?  First of all I can say that I would be entering this meeting with a fifty-fifty chance of voting either way on either of the issues.  I am saying that partly because the e-mails you are referencing I do remember now… what I do remember expressing is that Mike [Farruggio] forwarded a letter around that expressed some strong opinions to Council and that he said that ‘This doesn’t present all the information. I am not sure I have all the information, but based on this letter it sure sounds like we are making a mistake and this sure sounds like it requires discussion…’ I read the letter he had forwarded and said, ‘Based on this letter, I too don’t have all the information…this sure sounds like from this letter we are making a mistake.’  That I agree with the Interpretation of this letter.”

Lewis – “You are impeaching Council’s decision and that’s not what I see as our job here.  Council has delegated to us two discreet questions that are very complex and that ultimately go to the ultimate question of whether there should be a crossing or not, but the issue of whether there should be a crossing or not is not before us.  Mike and I spoke about this.  I would hope you could have a clear mind, erase it, go in there and listen to what every single person has to say with an open mind.  But if you have already expressed an opinion that Council made a mistake in that vote, [then] I don’t know how you can [give consideration] to those two sub-topics impartially.  I have never seen Planning Commissioners express a personal preference before a public hearing vote.  I find it wrong.  Let’s just repeal the operating guidelines.  We reviewed and discussed them at length.  It said we have a duty to be impartial.  There [was] no wiggle room.”

Pearson – “Cheri… I must say I don’t see the partiality there…”

Lucy – “Ladies and gentleman, it’s 4:27 and we need to go to the chambers.”

Farruggio – “I have a question to ask first before we can go to chambers…Is there a test, as Cheri is suggesting, for impartiality? I can say right now I have come into a meeting feeling like I [feel] right now having some of the information and then came out with a different decision at the end.”

Harris – “That’s the idea behind a public meeting…”

Lewis – “But Mike if you have sent a public letter all around, how are members of the public going to perceive that?”

Farruggio – “I didn’t send it all around, I sent it to the Planning Commission and City Council.”

Lewis – “But you know that’s a public document because of the way you have distributed it.”

Farruggio – “I would agree it is a public document but I didn’t send it to the newspaper…”

Lewis – “This issue is whether the public that signs up to speak tonight will believe that Mike Farruggio, Bill Lucy and Jason Pearson can possible listen to him [or her] with an open mind.”

Harris – “The decision to be made is whether or not a mall crossing will go along with the comprehensive plan.  I didn’t even know about these comments that are out there, but if Bill or any of you can make that decision rationally, does this comply with the comprehensive plan, then I don’t see the issue.”

Lewis – “We are not a political body.  We were given an assignment, it’s a hard one, it’s very narrow to the ultimate question that Council has already decided.  It’s really hard.”

Pearson – “We are not a political body, so the idea of public perception swaying whether or not a member who is publicly stating… I am stating, ‘I can make an impartial decision.  Mike is stating he can make an impartial decision. To weigh whether the public will perceive or impartiality as impartial, that is a political consideration…”

[Commissioners leave the room]


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