Agendas and Minutes

City Council (View All)

Joint SS - Hrgs. Officer

Tuesday, November 25, 2003

NOVEMBER 25, 2003

SUBJECT: Use of a Hearings Officer for Council Appeals

Chair Russ Chapman convened the meeting at 7:00 p.m.

Commissioners present: Russ Chapman, Chair
Kerry KenCairn
John Fields
Cameron Hanson
Dave Dotterrer
Colin Swales
Ray Kistler
Mike Morris
Marilyn Briggs

Absent Commissioners: None

High School Liaison: None

SOU Liaison: None

City Councilors present: Don Laws
Kate Jackson
Chris Hearn
Alex Amarotico

Absent Councilors: Mayor Alan DeBoer
Cate Hartzell
John Morrison

Staff Present: John McLaughlin, Director, Community Development
Bill Molnar, Senior Planner
Sue Yates, Executive Secretary
Paul Nolte, City Attorney
Mike Franell, Assistant City Attorney

McLaughlin said one of the Council's goals from February was to evaluate amending the procedures to allow a hearings officer to handle land use appeals. It is his understanding that the Council was looking for a way to pull themselves out of the appeals process and have an independent hearings officer hear appeals of the Planning Commission's decisions. That would allow the Councilors the opportunity to talk to citizens, alleviating the problem of ex parte contacts. The other issue was the Council's workload. Usually appeals are not just a one night issue. It takes a couple of meetings to get through appeals.

Hearings officers are common throughout Oregon, especially in larger jurisdictions and in very small jurisdictions. In large jurisdictions a hearings officer is used to handling a large volume of actions. Jackson County has a hearings officer. The Board of Commissioners does not hear the majority of land use issues. Smaller jurisdictions use a hearings officer when the Council or Planning Commission does not handle enough actions to gain a knowledge base to make informed decisions.

It is Staff's opinion that the system we currently have best represents the City and is an appropriate process. As a planner, McLaughlin believes it is good to have the governing body that adopts the ordinances, be the final body interpreting those ordinances. The Council has the power to interpret their own ordinances. There is great deference given to that by the courts. Hearings officers are limited to interpreting what is in front of them as literally as they can.

McLaughlin is hoping to get some direction tonight as to how the Planning Commission and Council would like to proceed.

Hearn said, upon further reflection, he agrees with Staff. Recently, it does not seem like volume has been an issue for the Council. It forms an interesting irony when the Council is supposed to be responsive to voters and the prohibition of ex parte contacts. We might not want a contract employee to interpret policy.

Laws said, after reading the memo, he is not interested in pursuing this any further.

Chapman said he understands the Mayor and Council ultimately have to answer for everything that goes on in this town. If they feel like the Planning Commission has made a decision they can't defend, then the Council should reverse it. For the Planning Commission to be reversed by an outsider doesn't sound like local control.

Jackson was seeing a whole lot of community involvement in planning actions. She worked at the County where the hearings officer seems to work pretty well. In her year on the Council, they have only heard two appeals. That is not a large volume. Her interest is in getting a grasp on the larger picture. Of all the applications that come to the Planning Department, what types go to the Planning Commission for a decision and how many does Staff approve?

McLaughlin said about 60 percent of the planning actions are handled administratively at the Staff level. It fluctuates. Subdivisions and large scale developments have to go to the Planning Commission. Staff uses their latitude on the other actions, for example, actions that evoke neighborhood opposition or actions that would require interpretation would be heard before the Planning Commission.

Briggs believes if a hearings officer came on board, the public would view it as being muzzled. She wouldn't want that.

Kistler said he believes the public perceives the use of a hearings officer at the County as a real straight-forward, black and white, fair process. It is not seen that way in this town. Appeals are political. People make decisions based on the politics and personalities, the timing of submission of projects, etc.

Jackson said by using a hearings officer, it is an effort to remove the politics.

KenCairn wondered how a hearings officer could use creativity and negotiations for a Conditional Use Permit, for example.

McLaughlin said we are supposed to have a clear and objective process. However, there is still an art to planning. He believes that is why we have successful projects in Ashland. He noted that the Planning Staff was talking about one way our process helps us and gives us leverage with developers. If you get enough heads to together, the decisions will be good. The Planning Commission and Council make good decisions.

Dotterrer said some people say it is political. Political is called democracy. He would like to see the process stay the way it is.

Nolte said he has not been in a system where a hearings officer is used. He believes it could be easier on Staff to have a hearings officer. The hearings officer makes the decision and develops the findings. Ashland has a good process that is demonstrated by the small number of appeals we get.

Hearn thinks it seems odd to go from a tribunal that is reflective of the community to one person who is not elected at all.

Jackson said the Staff would have to be thorough in their staff reports with a hearings officer. This community seems to thrive on controversy. Though that may be a way we are used to doing business, is it the best way to do business? Do we want to have time to amend the code so we aren't spending two years on it or have the Planning Commission reviewing planning applications?

McLaughlin said in that way you are looking at replacing the Planning Commission with a hearings officer.

Laws said there a lot of places in our code where the words are not definitive, where a little interpretation is impossible and there is not way to word it so it would be definitive. For example, "compatible with the neighborhood" or "adequate transportation to and through the development". This can be a subjective type of decision, one that would be better made by a group tuned into the several segments of the community. Better than by a lawyer.

Hanson said if someone appeals a Planning Commission decision, they expect to go to the City Council. He believes that is how it should remain.

Fields thought it might be more impartial to have a hearings officer review appeals to the Council. There is a line as to how much the Council should interpret their own ordinances. If the Council is feeling burdened by the appeals process, delegating the workload might be better.

McLaughlin said in terms of impartiality, are you looking at the best decision for the community? Do the elected officials have some other motive? Fields said a third party person might be looking much more harshly at the criteria.

Laws said he always tries to follow the code. He thinks we need to maintain the ability where things are not clear, to make decisions. He can only think of two or three cases in his time on the Council where the Council appealed a decision of the Planning Commission. These were cases where the Planning Commission was moving away from the interpretation the Council thought was intended in the code and they wanted it clear. This couldn't be done with a hearings officer. The Council could appeal it but the hearings officer would hear it.

McLaughlin said the City could appeal the hearings officer's decision to LUBA.

Swales feels strongly the Council should be listening to the appeals. However, there is an argument to be made to replace the Planning Commission with a hearings officer. They have heard complaints that the Planning Commission is an appointed body at the whim of the Mayor. Maybe we ought to discuss whether the Planning Commission should be replaced by a hearings officer. Then the Planning Commission could concentrate on the larger issues.

Briggs said we should do both.

Nolte introduced Mike Franell, Assistant City Attorney. He comes from the City of Ontario where he was the City Attorney for many years and before that the Planning Director. Franell said he has seen hearings officers used very effectively at the initial level of decisions. The City of Ontario felt their whole process of permit approval was taking too long and they thought a hearings office would speed it up. The hearings officer, under State Statute, can hear the application without a public hearing and make a decision and send out notice to the affected property owners of that decision. That decision can be appealed and then there would be a public hearing. If the goal is to free up time for the Planning Commission to have more time to deal with big picture issues, you might want to insert a hearings officer at the front end of the process.

McLaughlin said it probably wouldn't change much for the Commission's workload, but it would still be work for Staff.

KenCairn thought it could be efficient in some ways to have a hearings officer, but a lot of what she hears is that people don't want decisions to be faster, they want them to be slower.

Dotterrer wondered if we had a hearings officer to hear planning actions instead of the Planning Commissioners, what would McLaughlin see the Commission using their time for? McLaughlin said Staff would bring more things to them for review in terms of long-range planning, but it would be more work for Staff.

Swales said if the Comprehensive Plan would need review, it would be the job of the Planning Commission. McLaughlin said they would still need staff support. It is something to look at. They could bring it up at the budget process.

Chapman finds that the current demands of the Planning Commission are sufficient for a volunteer board.

Briggs said sometimes the Planning Commission has asked applicants to compromise or make changes and come back with the changes. McLaughlin said a hearings officer would probably have to hold fast to the ordinances. The Planning Commission has some discretion to weigh some issues.

Kistler said his experience with the Jackson County hearings officers is that the decisions are black and white and the code is a lot more black and white than Ashland's. He feels you get a fairer shake with the hearings officer.

Swales said applicants probably do not apply for as many variances in the County.

McLaughlin said projects with variances in our system many times end up with a better end product than without a variance.

Where Do We Go From Here?

Amarotico said he would like to pursue the option of a hearings officer, but not now.

Jackson appreciated having the discussion now. She can see some value in the future considering a hearings officer for certain types of decisions instead of the Planning Commission. She would like to monitor the volume of actions and get some sense of how it would impact Staff's ability to get to the Comprehensive Plan, etc. If we need more staff to balance the Planning Commission to do code work, let's figure out what that is.

Chapman asked for a show of hands of those wishing to pursue a hearings officer to hear Council appeals. No hands were raised. Chapman said if the Council would like to pursue another option, they can do that in discussions amongst themselves and bring it back.

ADJOURNMENT - The meeting was adjourned at 8:10 p.m.

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