A blog dealing with Sarasota County and the City of Sarasota.

Thursday, August 1, 2013

The presumption of improper prejudice

I'll probably catch a bunch of crap from people suspicious of my environmental credentials, but I don't really care. The fact is I kind of admire Hugh Culverhouse Jr. He controls a lot of land, which is admirable. And if the best attorneys are those that win, he hires the best attorneys. And he doesn't always fall in with the other big landowner developers around here. 

I wish he'd take a page from Bertha Honore Palmer's sons and Elsa Scherer Burrows and commit to creating a meaningful native habitat connection between Oscar Scherer State Park and the Pinelands Reserve, but there's still time for that.

Mr. Culverhouse has a new bone to pick with Sarasota County. He believes he has unfairly been denied access to the County Commissioners --- access he believes other developers have, or at least have had. The County's attorneys agree he has been denied access, but contend that is for good reason -- to avoid what are known as "ex parte" communications that are inappropriate in "quasi-judicial" decisions. 

Quasi-judicial sounds a little like Elmer Fudd (think quasi wabbit), but refers to what kind of decision is being made. "The function of a quasi-judicial land use hearing is to be judicial-like in only applying the existing adopted regulations or policies to specific development applications, as opposed to the legislative-like creation of new laws or policies." So, as I understand it, if an administrative body is working on broad policy affecting hypothetical situations in the future, that it is legislative (or maybe quasi-legislative), but if what is being proposed involves application of existing laws here and now related to a specific proposal, that would be quasi-judicial.

Back to ex parte. So if it is quasi-judicial, the decision should be based only on testimony presented at the hearing. Thus you can see that having the applicant meet with Commissioners outside of the hearing could color the the Commissioners thinking. Communication outside of the open meetings is "ex parte".

I'm sure attorneys can bill plenty of hours exploring the nuances of all this, but on face value it appears pretty simple: If you are dealing with the application of existing rules to a specific proposed project, it's going to be quasi-judicial, and if you are working on adopting new general policy with broader application it is legislative. 

On July 28, 2013 the Sarasota Herald Tribune ran an editorial "A question of access" discussing all this and came down on the side viewing special meetings with developers regarding rezonings as quasi-judicial.
Last four paragraphs of the Herald Tribune Editorial

But are the two (quasi-judicial and legislative) really that different?

What if instead of one developer seeking a rezoning, two developers team up and seek a comprehensive plan amendment instead that, as a practical matter, only applies to them? Then instead of general policy with broad application we end up arguing about rules that will apply to specific parcels of land -- should people seeking those changes be treated differently than people who only want one thing changed? Couldn't one argue that changes that apply to multiple parcels deserve even more protection from special access that could bias commissioners? 

Or what if one developer wanted to have the Comprehensive Plan changed in a way that only affected their property. That is what a developer is claiming to be doing in Manatee County with a project called Long Bar Pointe

His proposed project does not comply with the existing Manatee County Comprehensive Plan, so he was advised to try to change the plan. And he believes he has laden the proposed changes with so many specifics that, when taken in total, the changes could only apply to his project. The Comprehensive Plan exception would only apply to:

• Water-Related Uses or Water-Enhanced Uses, that also
• demonstrate new, substantial, and material public benefit, that also
• increase public access to the waterfront, that also
• provide appropriate mitigation of impacts by the use of performance or design standards that seek to achieve the objects of the Chapter (of the Comprehensive Plan), and that also
• are large, innovative, mixed use projects, and are
• at least 200 acres in size, and are also
• along a coastal line adjacent to navigable waters, as well as being adjacent to 
• an arterial roadway as shown on the Future Traffic Circulation and Functional Classification Map. 

Now, for the record, some people don't agree that this set of constraints could only apply to one parcel in Manatee County, and they worry that this change would be precedent setting.* Their arguments will probably be brought forward at the hearing Tuesday Aug 6 starting at 1:30 pm at the Bradenton Area Convention Center at 1 Haben Blvd in Palmetto.

But let's assume the developer is correct and these eight conditions in combination could only apply to one parcel. Adopting ostensibly "comprehensive" plans that apply to only one parcel starts seeming a lot more like a specific project that is being discussed than a general policy with broad application. So why might it make sense to allow decisions in that situation to be based on testimony that was provided outside of public purview??

I mean if the principle is that the commissioners should be free to talk with anyone about general policies being proposed with broad application but that dealing with specific parcels and projects requires that the sole basis of the decision be based on testimony provided in open, advertised meetings, why would Comprehensive Plan amendments that only deal with one parcel be treated differently than a re-zoning?


• Some believe the proposed skyway development would qualify, but that section of highway is shown  as limited access (being I-75) and not an arterial.