Avoid ex parte contact to ensure impartiality

While it’s difficult to avoid ex parte contact, it’s important for planning commissions and boards of appeals to do so.

For members of a local planning commission, or zoning boards of appeals, it is particularly difficult to avoid having ex parte contact.

Ex parte contact happens when a member of a planning commission or zoning board of appeals (ZBA) are contacted by someone outside of the meeting concerning a pending issue, such as approval of a special use permit, planned unit development, site plan, or appeal. This type of contact should be avoided.

But to many, avoiding this type of contact is counter-intuitive. We believe one should hear concerns and listen. That is, after all, local representative government. So this becomes a big concern whenever presenting an education program on planning and zoning ethics.

But here is the other side of that coin: if a member of the planning commission or ZBA has a conversation on the street, etc. then how does someone else ever know what was said and have an opportunity to respond, supporting the conversation or refuting it? That basic level of fairness is important and what a planning commission and ZBA should strive for.

It is similar to going to court. You expect the judge to be fair and neutral. You expect that both sides to hear what the other has to say, and you have a fair opportunity to respond. If you did not even know the conversation took place, let alone what was said, you do not have any ability to respond. You would not expect the judge to be swayed by some talk about the case s/he had outside the courtroom.

In Michigan, planning commissions and ZBAs are administrative bodies. They are duty-bound to make decisions based on standards (found in the zoning ordinance), not on what the popular majority wants. Representing the will of the majority of electors in a community is the job of the legislative body – the township board, village council, city council or county board of commissioners. It is not the job of the planning commission or ZBA.

The planning commission and ZBA need to behave closer to the expectation of fairness one has for a court. Some basic points are:

  • Make sure that every member of the planning commission, ZBA, gets to hear everything that is said.
  • What is said should be said at a public meeting, not elsewhere.
  • Members of a planning commission and ZBA should not pre-judge a case.
  • Make sure that others also hear everything that is said, and that others have an opportunity to respond.

The basic idea is that all members and all people that are interested enough to be at the meeting can hear all sides of an issue, and can add to or respond to what has been said. One federal court said it well:

“Parties at the hearing . . . are entitled to an opportunity to be heard, to an opportunity to present and rebut evidence, to a tribunal which is impartial in the material, having had no prehearing or ex parte contacts concerning the question at issue . . . .” – Fasano V., Board of County Commissioners of Washington County.

So what does a planning commissioner or ZBA member do when someone stops you on the street or during a site inspection? Explain to them about ex parte contact, ask them to attend the meeting or hearing and share their concerns so everyone can hear, or write a letter to the commission or ZBA.

If this approach fails, then as soon as you can, take detailed notes on what that person said. At the hearing or meeting, explain that the person spoke to you and would not stop, that you tried to get them to attend the meeting, but to the best of your ability this is what was said. Then using your notes, repeat what you were told. Name the person you are reporting about. This is not perfect, but it gets the comments on the record at the meeting and allows others to hear and respond.

Often issues of ex parte contact occur during site inspections. So the planning commission and ZBA should talk through how they want to handle this and should spell out their procedures in their bylaws (planning commission) or rules of procedure (ZBA). Samples of both can be found at on Schindler’s Land Use Page.

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