In their meeting Thursday evening, the
Charlottesville Planning Commission
directed staff to prepare written guidelines strongly discouraging any communications between the Commissioners and developers or citizens with a position on a matter before the Commission. A motion to eliminate those communications entirely was considered then withdrawn. If approved, the City Planning Commission would adopt a style in sharp contrast to their neighbors in Albemarle County where these informal meetings with concerned citizens and developers are common practice.
In their discussion, the Commissioners described the challenges they have faced handling what they refer to as “
ex parte
communications” outside of their public meetings—contacts between themselves and developers and activists about development proposals in the City. With input from Jim Tolbert, Director of Neighborhood Development Services, the Commissioners evaluated legal concerns, potential conflicts of interest, and the role of staff vs. the Commission.
Commissioner Cheri Lewis was not in attendance for this portion of the meeting.
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The issue was raised by one of the newest Commissioners, Jason Pearson. Mr. Pearson said he had been contacted by several developers in advance of their projects being heard in a public hearing. He expressed his discomfort about these conversations taking place outside of a public meeting and that was now telling developers he would no longer meet with them privately. In bringing the matter to the Commission, he asked for a public discussion about the appropriate communications protocol.
Chairman Jon Fink described how, on the two-three occasions in which he had meetings with developers or applicants, that he did so at City Hall with a staff member present. There was some discussion about the merits of this approach. Mr. Fink said he was not in favor of Commissioners meeting privately with applicants.
Another of the new Commissioners, Michael Osteen, described how he had pursued a position on the Commission after his work as a neighborhood activist. He described regular meetings with developers and residents that had taken place in his home over the past two years. Mr. Pearson pointed out that he, by contrast, has decided to step back from his leadership role on issues in his neighborhood.
Mr. Tolbert implored the Commissioners to remember the potential for lawsuits and described how in other states where he has worked that ex parte communications with an applicant or citizen activist were absolutely forbidden.
Mr. Fink encouraged Mr. Osteen to embrace a new role as a Planning Commissioner. “You need to get altitude on your neighborhood now because you are no longer just a neighborhood member. You represent the entire community….So you being at these meetings and hosting them at your house—I would recommend that you no longer host them, because its going to look like, you know how people can twist anything in any way, ‘Well he hosted that, he must have been in favor of it.’” Mike Farruggio added that he purposely avoided his own neighborhood association meetings for that very reason.
Mr. Farruggio asked, “Where do you draw the line? Do you never have a conversation with a developer? Is that what you would recommend?” Mr. Tolbert responded, “I would err that way.” He recommended all contacts go through the appropriate staff member.
When Mr. Farruggio asked if there was support for a policy that would limit communications to taking place at City Hall with staff present and Mr. Tolbert suggested that would not address his concerns. “If you want protection… the issue is you talking to a developer or a neighborhood advocate about a specific project outside the context of a public meeting and all that information not being shared. That’s the danger. That you would hear something in that meeting that would color your opinion. And then you would go into that vote and the other side, whichever it may be, would never hear what had been said and you voted based on something you heard that nobody else was privy to.”
Mr. Pearson made a motion as follows: “We have no ex parte communications.” It was seconded by Hosea Mitchell.
In the discussion, Mr. Osteen asked if anything was different for City Council. Mr. Tolbert responded, “They are in the same boat.” To which Mr. Osteen observed, “Every Councilor I have ever talked [to] in twenty-five years has sat down there and talked to me as long as I wanted to talk.” Mr. Tolbert agreed that was the current culture of the community. “Its one of those things where nobody has sued yet. We haven’t had contentious land use issues where you get into those periods of litigation.”
Mr. Fink told the Commissioners that they could all be sued individually for their actions. Mr. Tolbert echoed that, “If you take on my role, you lose your protection as a Planning Commissioner and that’s a fine line.”
Mr. Tolbert said staff would never propose language for the bylaws that said “thou shall not have ex parte communications,” even if the motion on the table was approved. Instead his recommendation would be language that said, “Planning Commissioners should avoid ex parte communication with applicants or opponents of a rezoning.”
In the end, Mr. Pearson withdrew his motion and the Commission directed staff to prepare a new written guideline strongly discouraging any communications between the Commissioners and developers or citizens with a position on a matter before them.
Brian Wheeler
