Cities take contrasting steps to obey zoning communications rule ...

The governments of Topeka, Shawnee County, Lawrence and Lenexa all follow somewhat different processes to comply with a Kansas Supreme Court ruling regarding communications on zoning matters.

Attorneys for those governments talked with The Capital-Journal this week about what they do to ensure they obey parameters regarding zoning ex parte communications the Kansas Supreme Court set in 2002.

An ex parte communication is a direct or indirect communication on the substance of a pending case without the knowledge, presence, or consent of all parties involved.

The Supreme Court?s 2002 ruling in the case of McPherson Landfill Inc. v. Board of County Commissioners of Shawnee County included a requirement that whenever ex parte communications are submitted in zoning matters, other parties involved must be informed and given an opportunity to respond.

The city of Topeka has long required governing body members to publicly disclose any oral or written ex parte communications they receive on zoning matters. But city officials say Topeka apparently didn?t consider revising its process until debate began recently over a proposal to rezone property located along S.W. 37th Street just west of Burlingame Road.

Brenden Long, city attorney from 2001 to 2008, said this week he didn?t remember the McPherson Landfill ruling becoming an issue during his tenure. The city since 2002 hasn?t lost any legal actions as a result of its treatment of ex parte communications in zoning matters.

But amid the debate over the rezoning on S.W. 37th, then-city attorney Dave Starkey sent governing body members an email last month directing them not to have ex parte conversations or read ex parte letters or emails received on the matter.

Starkey told the body to forward written communications to him and to encourage residents to share oral arguments at a public Topeka Planning Commission meeting.

Current city attorney Chad Sublet, who took over May 4 after Starkey retired, told the governing body May 14 to forward to his office any ex parte communications it receives on any zoning matter. He said his office would forward the document to the opposing party, enable them to respond, then forward the initial communication and the response to all council members.

Sublet said Thursday that because Topeka?s governing body sits as a quasi-judicial body in all zoning application cases, it would be fundamentally unfair for it to be privy to documents or communication not contained in the Topeka Planning Commission record on zoning-related matters without a response from the opposing party.

Toni Wheeler, city attorney for Lawrence, said this week her office hasn?t asked nor required Lawrence city commissioners to forward ex parte communications to it.

Wheeler said Lawrence commissioners at the outset of any quasi-judicial hearing publicly disclose any ex parte communications containing information not already included in the public record.

She said any interested party consequently has the opportunity to rebut that information, while the city commissioners all enjoy access to the same information upon which to base their decision.

Wheeler said that because commissioners publicly disclose ex parte communications, her office?s opinion is that their process for dealing with such communications complies with all legal requirements.

Rich Eckert, Shawnee County counselor since 2000, said he is confident about the county?s procedure for dealing with ex parte zoning communications because that process was ?blessed by the Supreme Court? in its 2002 McPherson Landfill decision.

The court upheld then-District Judge Eric Rosen?s ruling in favor of the commission after it denied McPherson Landfill?s request for a permit to operate a landfill. Rosen and the Supreme Court concluded no ex parte communications commissioners received prior to the vote rendered their final decision unlawful.

Eckert said the county still uses the same process, through which he tells commissioners they may accept ex parte communications but are directed to keep a written log of them.

Commissioners are allowed to read ex parte letters and emails but then must forward them to the county commission office, which copies them and makes them publicly available when the zoning matter is considered.

Commissioners are asked to disclose face-to-face and telephone ex parte conversations before the hearing opens, Eckert also said.

He stressed that he directs commissioners not to form an opinion on any zoning matter until they have listened to all of the evidence being presented.

Lenexa city attorney Cindy Harmison said this week that her office has twice faced cases in which Lenexa?s handling of ex parte communications in zoning matters was challenged in court but found lawful.

Harmison, Lenexa?s city attorney for more than 20 years, said she tells Lenexa council members they are welcome to speak to anyone about zoning matters but must later disclose those conversations on the record.

She said Lenexa council members generally choose not to enter into such conversations and tend to ask constituents to instead submit written comments, which are forwarded to the city?s department of community development to be made part of the official public record in the city council meeting packet.

Source: http://cjonline.com/news/2013-05-24/cities-take-contrasting-steps-obey-zoning-communications-rule

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