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HomeMy WebLinkAbout11-02-09 Admin Committee - minutesDublin City Council ADMINISTRATIVE COMMITTEE MEETING Monday, November 2, 2009 Minutes of Meeting Mr. Lecklider called the meeting to order at 5:35 p.m. Council members present: Ms. Salay, Mr. Lecklider, Vice Mayor Boring Staff present: Ms. Colley, Ms. Husak, Mr. Gunderman, Ms. Martin, Ms. Noble-Flading Vice Mayor Boring stated that the purpose of this meeting of the Administrative Committee is to review the proposed amended rules and regulations forwarded by the respective boards and commissions for Council adoption. Ms. Colley stated that the Planning and Zoning Commission, Board of Zoning Appeals and Architectural Review Boards have updated their rules and regulations and forwarded those to Council for formal adoption. Staff liaisons for each of these bodies are present to respond to questions. Vice Mayor Boring stated that she would begin with questions related to the Planning and Zoning Commission (P&Z). The Revised Charter of the City of Dublin provides specific rules regarding the composition, terms, powers and duties of its boards and commissions. Mr. Lecklider stated that he does not believe a complete review of each point in the proposed update of the rules and regulations is needed. However, he would look for an explanation, collectively or independently, with respect to the proposed ex parte rule, which is his only concern in the changes. Vice Mayor Boring noted that each of the sets of rules and regulations contains the some provision, and asked Ms. Husak to respond to Mr. Lecklider’s concern. Ms. Husak, Planning staff, stated that it was staff’s intention to update that provision in the P&Z rules and regulations. After the Planning Commission had determined their preferred language in the P&Z rules and regulations, the language was then incorporated into the Rules and Regulations for BZA and ARB. The Planning Commission reviewed draft language at two or three meetings. Their primary focus was to remove any duplicated language already contained in the Charter and the Zoning Code. In regard to the ex parte rule, extensive discussion occurred at P&Z meetings two to three years ago. The current P&Z considered Commissioner Friemann’s opinions regarding the appropriated level of contact with applicants or their representatives and property owners, due to his background as an attorney. The Commission also reviewed the ex parte rules adopted by other communities. Their final decision was to prohibit all contact between the Commissioners and any individuals associated with applications submitted or under review by the Planning Commission. Any questions or comments by an applicant or applicant’s representative would either be referred to the Planning staff or requested to be held for discussion at the public hearing. Vice Mayor Boring noted that the proposed provisions also would require that copies of any email, note or other communication from the applicant would immediately be forwarded to other Commissioners so that all members would have the same information at the same time. Administrative Committee Meeting Minutes – November 2, 2009 Page 2 Ms. Husak responded that any attempt at contact would also be shared with the other Commissioners. Vice Mayor Boring stated that, in addition, the rules and regulations can be reviewed annually and any desired modifications can be submitted to Council for consideration. Mr. Lecklider asked if the Commissioners had indicated that they had experienced attempts by applicants or applicant representatives to discuss their applications with the Commissioners. Ms. Husak responded that, although a Commissioner’s experience did serve as the impetus for clarifying the Commission’s rules and regulations two or three years ago, the Commissioners did not indicate any recent experiences. Mr. Lecklider stated that if Council were to adopt the proposed ex parte rule, it would have the potential of creating an uneven playing field, from a resident’s perspective. As it stands, applicants typically have the benefit of paid professionals – attorneys, architects, etc. who have the opportunity and do, in fact, spend hours of time with the Planning staff. These individuals are far more experienced and skilled than the ordinary resident would be. The objective is to create fairness and a level playing field. How is the status quo unfair to the various parties? Ms. Husak stated that staff works on behalf of the residents and the community; therefore, they are available to help the residents. On a daily basis, staff reviews the plans and any other related documents. The Commissioners did not believe that they had the same information that the professional staff often had. Consequently, information on how to contact the appropriate staff contact person is now provided to the public. The Commissioners were not only concerned about providing the best information to inquiries, but also about eliminating the impression that contacting one Commissioner might have influence on the entire Commission. Vice Mayor Boring asked if residents have the opportunity to contact the staff and share with them their concerns and comments. Ms. Husak confirmed that the residents do have that opportunity. Vice Mayor Boring asked if the applicant also forwards correspondence or an email with their comments and/or concerns to all of the Commissioners, so that all of the Commissioners have the same information. Ms. Husak responded that they may do so. If they contact staff with comments and/or concerns, staff also shares that information with the Commissioners. Mr. Lecklider asked if the current rules in place require that the Commissioners have contact with the residents. In his previous tenure as a Commissioner, he was not compelled to handle such contacts beyond referring it to the Planning staff. Ms. Husak responded that is also the current status. Vice Mayor Boring stated that if this provision is included in the Board or Commission’s rules and regulations, it will provide the commissioners an “easy out” if they are approached. Administrative Committee Meeting Minutes – November 2, 2009 Page 3 Mr. Lecklider asked if the exclusion regarding discussions of current applications would include Council members. Ms. Husak responded that the intent is that it would apply to everyone. Ms. Salay stated that under that scenario, Council Members would be unable to discuss their perspective with their appointed representatives. Would Council members be required to go through staff to speak with their own Planning Commission? Ms. Husak responded that the language does not specifically exclude Council members. It does state “interested parties or each other.” Ms. Salay stated that Council Members would probably fall under “interested parties.” Vice Mayor Boring requested that staff obtain Legal’s opinion on this question. She asked if Ms. Salay would have an objection to that exclusion. Ms. Salay responded that she has concerns with the entire concept of limiting citizen contact, including Council’s. She respects Planning’s staff’s professional opinions and the efforts they make on the behalf of the community, Council and the Planning Commission. However, she feels very strongly that the Commissioners are Council’s citizen representatives, and the only perspective she can bring to this job is her own. She first became involved in the development process as a concerned resident passionately concerned about her neighborhood. If the residents had not been able to contact their citizen representatives on the Planning Commission and on City Council -- particularly the Planning Commission where many decisions take place -- they would have been very frustrated. The citizens would have felt that there was no ability to have any impact. By the time of the hearing date, people have already made up their minds. At the hearing, there are applicants who are well-schooled – land use attorneys, planners and architects who are also advocates for the applicants. These same individuals also have the ability to converse with the Commissioners and staff at a professional level, as they all “speak the same language.” On the other side, there are residents, who, although more savvy than in many communities, are nevertheless at a severe disadvantage. To say that they can have no input other than at the public hearing is not consistent with Council’s intent. The Commissioners are there to provide citizen perspective and to provide recommendations to Council. The applicants have all of the other advocates. The residents of the community have only the City staff and the volunteer citizen boards with whom they can discuss their concerns and obtain assistance. Most often, the citizens are concerned with their home value, which probably is their single largest asset, and their quality of life, as residents of the community. She fervently believes that they should have the right and the ability to engage the volunteer citizen members who serve on these boards. Vice Mayor Boring inquired if Ms. Salay’s recommendation is that when this item is taken to Council, that the Committee’s reports this as an item of concern. Ms. Salay stated that she would like to go a step further. She would like to have a discussion with the Planning Commissioners and understand their perspective on this matter. She could not grasp from the meeting minutes why they believe this is the right thing to do. Ms. Husak stated that she does not believe the present Planning Commission has experienced a problem with citizen contacts. Administrative Committee Meeting Minutes – November 2, 2009 Page 4 Ms. Salay responded that is why she finds it difficult to understand what problem they wish to address. When she served on the Planning Commission, there was also not an existing problem related to citizen contacts. She was able to handle the few phone calls and the limited contact that she received very professionally. She would share her perspective and listen to their perspective, and she would always indicate, as she does now, that she is one of seven make the decision. Vice Mayor Boring stated that the Committee would then share their concerns with Council and would recommend that a joint meeting be scheduled of Council and the Planning Commission to discuss this issue. Approval of all three sets of amended rules and regulations could not proceed until that discussion occurs. Ms. Salay inquired if the Board of Zoning Appeals always operates in a quasi-judicial format where they really should not be discussing cases outside of the meetings. Ms. Noble-Flading confirmed that is correct. Ms. Salay responded that in the case of the BZA, the laws that govern their operation would be different from those of the Planning Commission and the Architectural Review Board. Ms. Noble-Flading agreed. The Planning & Zoning Commission is a recommending body, and the Board of Zoning Appeals decision is appealable only to the Court. Mr. Lecklider agreed that the Board of Zoning Appeals would be distinct from the other two bodies due to the fact that the Board is quasi-judicial, and it would be inappropriate for them to have ex parte communications. Therefore, that rule could remain in the Board of Zoning rules and regulations. Ms. Noble-Flading stated that the desire was not only to relieve the Commissioners of conversation between neighbors and applicants, but avoid the issues of the perceptions of those discussions. Based on a casual conversation, residents or applicants may have a perception of a Commissioner’s position on a case – even if the Commissioner has not made up his/her mind. Mr. Lecklider stated that a Commissioner can always choose not to have a conversation. One issue he has with this proposed rule is the enforceability. Practically speaking, if two or more Commissioners are having discussions outside of the public meeting or with a Council Member, it is unlikely they would self report. The only people who are truly being restricted are the residents. He does not believe the result of this rule would be creating the level playing field that, ideally, Council would like to establish. Vice Mayor Boring inquired if ARB is also quasi judicial. Ms. Martin stated that she does not believe ARB’s role is quasi judicial. An ex parte provision was also included in the previous ARB rules and regulations. Mr. Lecklider stated that his question again would be, whether there is a problem. Ms. Martin responded that she is fairly new to the staff liaison position, and is aware of no issue(s.) In actuality, there are more resident applicants than developer applications for ARB review. Mr. Lecklider stated that the status quo is that the ARB members should not be having ex parte conversations with the applicants. Administrative Committee Meeting Minutes – November 2, 2009 Page 5 Ms. Martin confirmed that is correct, which is consistent with the current ARB rules and regulations. There are a couple of ARB members whose businesses/offices are located in the Dublin Historic District, and they are often contacted by residents about concerns. The inclusion of the ex parte requirement in ARB’s rules and regulations has been necessary to make the members aware of this expectation. Ms. Salay stated that, regardless of the extent to which this rule is incorporated in the various rules and regulations, it could also be discussed in the board/commission orientation. She does agree that the enforceability of this rule is very difficult. For instance, an applicant could discuss a potential situation with a board member or commissioner before an application has even been filed. Vice Mayor Boring stated that a joint meeting between Council and P&Z, BZA and ARB members will be scheduled for discussion of the ex parte rule. Vice Mayor Boring referred to “Regular Meetings – B.” Is it necessary to indicate when the yearly meeting calendar should be approved? Can it simply state, “as approved by the first meeting of the year. “ Ms. Husak stated that P&Z’s practice isn’t necessarily to adopt the new meeting calendar by a particular date. Does Council adopt their meeting schedule for the following year by a particular date? Vice Mayor Boring responded affirmatively. Ms. Husak responded that the Commission’s policy could be to adopt their calendar after Council has adopted their calendar. Vice Mayor Boring requested that the wording be clarified accordingly. Vice Mayor Boring referred to “Agenda – B.” She is confused by the provision that the Chair can alter the agenda order at the meeting. Does that mean the Chair does not need the approval of the Commission to do so? Ms. Husak responded that it does. For instance, if there is a case initially scheduled later on the agenda for which there are many members in the audience, the Chair could make the determination to move that case up to an earlier position on the agenda. Vice Mayor Boring stated that she hopes that provision would not prove, in the future, to become self-serving. Vice Mayor Boring referred to “Tabling and Withdrawal,” which states that “…requests may require approval by a majority of the Commission members in attendance.” It should state that “requests shall require a majority of the Commission…..” Ms. Husak indicated that the word would be corrected accordingly. Vice Mayor Boring referred to p. 5, Item #D, which provides that “the Commission may permit applicants or their representatives the opportunity to respond to any issues raised before the Commission by the City or the public.” Who is “the City”? Ms. Husak responded that “the City” is staff. Ms. Salay expressed that she, too, is concerned about the Chair having the authority to limit the time for each citizen comment, the number of persons making comments and the Administrative Committee Meeting Minutes – November 2, 2009 Page 6 number of times a single person may speak. She would be more comfortable with the provision that each member of the public is limited to a maximum of five minutes and is requested not to repeat their concerns. If they were to repeat, the Chair could caution them that it is not good use of the Commission’s time. If the desire is to level the playing field, this is the only opportunity the resident has to discuss this case with its citizen body. Typically, they would have five minutes for testimony, but this provision would give the Chair the discretion to limit them to three minutes. If the community members did their homework and prepared a presentation, that could damage their ability to make the points they need to make. She believes this item should have further discussion with the Commission. Vice Mayor agreed. Is the concern that the Chair may cut speakers off too soon? Ms. Salay responded that she is concerned that if the Chair has the ability to permit the speakers five minutes, but at another meeting, because the agenda is longer, they feel a need to shorten the meeting, or they think everyone is present to say the same thing, the Chair could limit the speaking times to three minutes. The residents may expect and be prepared to speak five minutes. If they are cut off by the Chair, that could leave a very negative impression with the resident. Vice Mayor Boring stated that when she was a citizen representative, the time limits for the applicant were never adhered to. She hoped this provision would address that problem. Ms. Salay suggested that this item could also be discussed in the joint meeting. She is curious what problem has existed that they wish to resolve. The minutes indicate the Commissioners gave a careful review to this document, so it follows that this is what they wanted, but for what purpose? Vice Mayor inquired if staff provided most of this language as a draft for the Commission to consider. Ms. Husak responded that staff initially provided a version, and then the Commission made changes, but the two were merged. The intent of some of the revisions was to help the meeting proceed in a more orderly and professional manner. Vice Mayor Boring asked that staff make the Commission aware of Council’s concerns before the joint meeting. Perhaps Council’s concerns would impact their perspective, or at least they would be better prepared to discuss these items. She would also like the word “City” as used in this document to be revised to “staff.” The context of the current use is of a greater body, including Council. Ms. Husak indicated that staff would follow up on those directions. She inquired if the Committee has further concerns about Section E on page 9, which provides that “the Chair shall close the public portion and the Commission shall deliberate and then they may request additional information.” Ms. Salay stated that has no objections to the Chair closing the public portion after all members of the public have had the opportunity to be heard. Vice Mayor Boring stated that she would like to see that rule more strictly followed. There have been several occasions during which the public portion was closed and the Commission’s discussion was proceeding where some attorneys interject with their explanations. The Commission should, however, be permitted to ask questions and request additional information. Vice Mayor Boring referred to the ARB rules and regulations, Section A2 – Membership, which states “The Board shall have five members appointed by City Council.” She checked Administrative Committee Meeting Minutes – November 2, 2009 Page 7 the City Charter, and it does not specify the number. Consequently, language should be added to this section that states “unless otherwise specified by City Council.” Mr. Lecklider requested clarification about why the language should be added. Vice Mayor Boring responded that ARB does not establish the number of members to serve as its membership; Council does. The City Charter does not specify the number of members on ARB, as it does for P&Z and BZA. Therefore, Council would have the ability to change that number, if so desired. Adding the language would make the rules consistent with the City Charter. That clarification was made in regard to the board members’ terms, but not in regard to the number of members. Continuing this clarification, under “Quorum,” rather than stating “the majority of members (three members),” remove the parenthetical reference of three members. Vice Mayor Boring asked if the Committee is prepared to recommend approval of the BZA rules and regulations. Mr. Lecklider asked if the intent is to provide recommendations regarding the three sets of rules and regulations separately, at separate times. Vice Mayor Boring responded that it was her understanding that the Committee wanted to recommend that Council discuss certain provisions in the P&Z and ARB rules and regulations in a joint meeting with those bodies prior to adoption. However, because it is quasi-judicial, the Committee had no objection to including the ex parte rule in the BZA rules and regulations. Ms. Salay suggested that perhaps it should be specifically stated that due to the fact that BZA operated in a quasi-judicial role, the ex parte rule exists for this particular board. Vice Mayor stated that the Committee’s recommendation to Council in the meeting that follows would be that adoption of the BZA rules and regulations be scheduled for adoption at the November 16 meeting, and a joint meeting of Council with P&Z and ARB be scheduled for discussion of: (1) the ex parte rule and (2) public comment time limit. The meeting was adjourned at 6:25 p.m. __________________________________________ Clerk of Council