Oakland Planning Commission Retreat September 17, 2014 Item #4b

Transcription

1 Oakland Planning Commission Retreat September 17, 2014 Item #4b

2 OAKLAND CITY PLANNING COMMISSION DUE PROCESS AND BIAS HEATHER LEE AND MARK WALD OAKLAND CITY ATTORNEY S OFFICE SEPTEMBER 17, 2014

3 Procedural Due Process Rights in the Land Use Process Two main categories of matters come before Planning Commission: Legislative actions Adjudicatory or Quasi judicial actions 2

4 Legislative Actions Planning Commission typically issues a recommendation to City Council on proposed legislation, such as general plan amendments or zoning ordinances Generally establish a rule to be applied to future cases 3

5 Quasi Adjudicatory Actions Apply existing rules to a specific project or set of facts. Quasi Adjudicatory Actions include decisions on preliminary and final development plans, conditional use permit, variances, design review, subdivision maps, revocation of land use permits Planning Commission serves as initial decisionmaker on some quasi adjudicatory items (i.e., major cases), and as the appellate body for staff decisions on others ( minor cases) 4

6 Due Process Requires Fairness The principles of procedural due process derive from the Fifth and Fourteenth Amendment of the US Constitution Procedural due process requires reasonable notice and a fair opportunity to be heard Procedural Due Process applies to quasi adjudicatory land use decisions that affect a substantial or significant property interest Generally, does not apply to legislative decisions 5

7 Ex Parte Communications and Fairness Ex parte communications occur when a Commissioner meets/communicates with one or more parties outside the confines of the public hearing process Planning Commissioner s ex parte communications and/or position statements may undermine due process requirements of fair hearing before a reasonably impartial decisionmaker Information provided outside public hearing process could limit opportunity for full and fair rebuttal Impressions of bias or unfairness cause due process concerns 6

8 Risks of Bias Threatens legality of underlying action Disqualification of Commissioner from the proceedings 7

9 Things to Avoid Avoid, or proceed with caution, in all communications and meetings on quasi adjudicatory items that may come before the Commission Don t publicly express a position on quasi adjudicatory items that may come before the Commission Best practice: Don t testify or provide written statements prior to the public hearing For example, signing a petition, writing letters stating a position, etc., before hearing the matter, can raise concerns. Attendance as impartial observer is OK, but not statements of position or as an advocate 8

10 Acceptable Communications Ex parte communications should Be limited to factual inquiries Not include expressions that reveal a position for or against the matter 9

11 What You Should Do What Commissioners can do: Proceed with caution before having ex parte communications Avoid statements of position on a project until having heard the evidence presented at the public hearing Disclose ex parte communications that you do have Forward any written communications (e.g., , letters, etc.) your receive in advance of the public hearing to the Planning Commission secretary and our office as soon as you receive them Consult with our office as far in advance as possible to develop strategy 10