The Commissioner — Spring 2003

Rules of Procedure for Planning Commissions

By Stephen Sizemore, AICP

Planning commissions play a variety of roles for the community. Sorting out these roles and their responsibilities can be very challenging. Although planning commissions across the country play a similar role in the development of planning policy, how they are constituted within the local decision-making system varies. Some planning commissions are purely advisory and others have quasi-judicial roles. Planning commissioners themselves are most often voluntary officials and the demands on their time and talents can be considerable.

Rules of procedure are one means of making the planning commissioner's job easier. Many commissions have adopted rules of procedure for themselves. They find them to be a useful way of clarifying their roles, orienting new members, and providing a set of guidelines to refer to in complicated situations. It may also be helpful to supplement formal rules of procedure with summary information about the commission's duties and ethical responsibilities, as well as with outlines of the considerations and legal issues typically involved in the commission's most common proceedings.

In 1996 the Wake County (N.C.) Planning Board asked its staff to develop new, more detailed rules of procedure. The resulting procedural rules not only link the board's work to North Carolina law, but also emphasize the all-important role of the board as a policy making body.

The rules of procedure were formatted as part of a handbook and placed on the county's website. The Internet makes public access to this information easy and accessible. (Visit www.wakegov.com/county/zoning/, click on Boards, then Agendas and Minutes, then General.)

This article provides the complete table of contents for the online handbook as well as excerpts from that handbook that may be relevant to planning commissioners in other jurisdictions.

TABLE OF CONTENTS

Chapter 1: Introduction
A. History
B. Organization
C. Duties
D. Responsibilities (see excerpt below)

Chapter 2: Planning Board Rules of Procedure
A. Purpose
B. Governing Statues and Ordinances
C. Officers
D. Meeting Attendance
E. Meeting Schedule
F. Meeting Notice
G. Meeting Agenda (see excerpt below)
H. Quorum
I. Conduct of Meetings
J. Minutes
K. Conflicts of Interest (see excerpt below)
L. Outside Communications (see excerpt below)
M. Committees
N. Orientation and Training
O. Reference to Robert's Rules of Order
P. Amendments
Appendix 2A Outline of Planning Board Agenda

Chapter 3: Typical Planning Board Proceedings
A. Zoning Ordinance Amendments (see excerpt below)
B. Preliminary Subdivision Plans
Appendix 3A Checklist of Applicable Standards:
Applications for Preliminary Subdivision Plan Approval

Chapter 1.D: Responsibilities

To Serve the Public Interest
In reconstituting the Planning Board, the Board of Commissioners defined the Planning Board's purpose as guiding and accomplishing a coordinated and harmonious development of the county that will, in accord with present and future needs, best and most efficiently promote the public health, safety, and general welfare. Appointment to the Planning Board, therefore, represents a public trust, giving a board member a responsibility to care for the general welfare of the county and an opportunity to help in shaping the present and future quality of life in Wake County.

Each board member's primary responsibility is to represent the best interests of the county as a whole. Board members are therefore expected to keep consideration of the general public interest foremost during their deliberations. They should consider the interests of particular individuals or groups only in the context of their relationship to the general public interest. Board members are also expected to retain an open mind to all viewpoints. They should not act as delegates of the particular municipalities, neighborhoods, occupations, interest groups, or socio-economic groups of which they are a part.

Furthermore, the Planning Board often serves as a public forum for citizen participation and discussion of planning issues important to the community. At such times, the Board should attempt to draw out and clarify the positions of people on all sides of the issue, and to identify the relationship of such positions to the public interest.

To Acquire Adequate Information and Knowledge
Each Planning Board member has the responsibility to acquire whatever information and knowledge is necessary to fully understand and make wise decisions and recommendations in the interest of the County. To this end, a Board member is expected to depend on both his or her own personal background, experience, expertise, and familiarity with the County (especially that part of the County in which he or she resides), as well as the expertise and knowledge of, and information available to, County staff members.

Board members are expected to have a full understanding of the County's Land Use Plan and other adopted County policies concerning development. They are expected to be familiar with the general scope, applicability, and organization of the County's zoning and subdivision regulations and review procedures. And they are expected to have a thorough knowledge and understanding of those policies, regulations, and procedures most applicable to the Board's administrative responsibilities (particularly those concerning the review of preliminary subdivision plans and requests for hardship variances from Subdivision Ordinance standards).

Members are encouraged to expand their knowledge and understanding of planning issues through such means as attending planning workshops and conferences and reading planning-related literature. Board members may join the American Planning Association, which offers a number of workshops and conferences and provides the monthly Planning magazine. And Board members may review books, periodicals, and other documents located in the Planning Department's small reference library.

Members are also encouraged to improve their understanding of current applications and issues by discussing them individually with the relevant staff members, either over the phone or in person. (But Board members should generally avoid contacting applicants and other interested parties outside of meetings: see L. in the Rules of Procedure.)

At Board meetings, members have the responsibility to insist that they are provided (by an applicant, interested party, or the staff) information of sufficient scope and depth to allow them to fully understand the issues before the Board and the alternative actions available to the Board. If the application, staff report, and other documents submitted to the Board regarding a particular item are insufficient to enable a Board member to fully understand the issues immediately before the Board, that Board member has the responsibility to ask questions of, or request additional information from, the applicant, other interested parties, and the staff (as appropriate) to acquire the necessary understanding.

To Be Fair
The Board also has the responsibility to ensure that its decision-making process is fair. This means that persons likely to be interested in a particular subject coming before the Board must be provided adequate and timely notice of the meeting at which the Board will review the subject, an opportunity to attend that meeting and present views and information concerning the subject, and an opportunity to know the information and considerations on which the Board bases its action concerning the subject.

Fairness also requires that Board members avoid any bias or the appearance of any conflict of interest in their decisions, that the Board act in a timely manner, that the Board keep full and accurate records of its proceedings, and that the Board establish and make available the ground rules under which it conducts business. (The next Chapter, "Planning Board Rules of Procedure,"sets forth such rules.)

To Make Rational Decisions
The Planning Board has the responsibility to ensure that the decision-making process it applies to any issue before it is not only rational, but is also perceived as rational. This means the Board's decision should consist of conclusions that are based on findings related to the standards, policies, and considerations applicable to the particular type of decision. Furthermore, such findings should be supported by information available to the Board — that is, information contained in an application, staff report, or other document submitted to the Board, or included in any testimony presented before the Board, or explicitly stated by a Board member from his or her personal observations, knowledge, or experience. Although this responsibility is important to all Planning Board decisions, it is an important legal requirement with administrative decisions concerning preliminary subdivision plans and quasi-judicial decisions concerning requests for hardship variances from Subdivision Ordinance standards.

To Take a Broad Perspective
Board members have the responsibility to recognize the comprehensive and long-range nature of many of the Board's decisions. They must consider, as well as balance and integrate, not only the many physical aspects of the issue being decided, but often also its economic and social aspects. They must consider not only the decision's immediate impacts on those persons most affected, but also its future and secondary impacts on the County as a whole. The Board should thus explicitly evaluate all facts, alternatives, means, and consequences relevant to its decisions.

As the County's body of elected officials, the Board of Commissioners are principally occupied with resolving pressing current problems that usually demand immediate action and that often involve the need to balance competing interests. The Commissioners, therefore, rely on the Planning Board to give them advice that reflects a broader and longer-range viewpoint than that demanded of them.

Chapter 2.G: Meeting Agenda

Preparation of the Agenda
The agenda of a Board meeting serves two important functions: it focuses Board deliberations by determining what matters will be considered at the meeting, when each matter will be considered, and the context in which each matter will be considered; and it serves as the public's only guide to what will be considered at the meeting, how will the matter be dealt with, who will participate in the discussion, and when may public comment be made. The agenda should be prepared so as to best achieve these functions.

Order and Form of the Agenda
The agenda shall generally organize matters to be addressed at the meeting so as to best promote opportunities for effective public input and the timely and efficient performance of Board responsibilities. Items of business likely to attract the attendance of many interested persons (such as those involving notice to adjoining property owners and those involving other public notice) should generally be placed early on the agenda, thereby minimizing the time those persons must wait for consideration of the item that brought them to the meeting. The agenda should identify (by name and/or role) the leading participants at each step of the Board's review and indicate the step at which interested persons will have the opportunity to comment on the item.

Chapter 2.K:Conflicts of Interest

To preserve public confidence in the integrity of the Planning Board and the County's governmental process, each Board member shall have the duty to avoid even the appearance of a conflict of interest. A Board member, therefore, shall ask the Chair to be excused from participation in any matter before the Board in which the member's impartiality might reasonably be questioned, including, but not limited to, instances where:

1. The Board member has a personal bias or prejudice concerning any interested party, or representative of a party, to a matter before the Board; or
2. The Board member has a close personal or financial relationship with any party or party representative; or
3. The Board member, or a member of the member's household, has a personal or financial interest that may be substantially affected (directly or indirectly) by the Board's action on the matter.

If any other person questions the impartially of a Board member before or during the Board's consideration of a matter, the Chair shall treat this as a request that the member be excused from participation. Any request that a Board member be excused from participation must disclose the basis for the request.

On concurring that an actual or apparent conflict of interest exists, the Chair shall excuse the member from participation in the matter. On finding that an actual or apparent conflict of interest does not exist, the Chair shall refuse the request and allow the member to fully participate in the matter. No actual or apparent conflict of interest shall be deemed to exist where the matter would similarly affect all citizens of Wake County (as generally with consideration of county-wide policies and regulations), or where the Board member's bias, prejudice, relationship, or interest is so insignificant or so remote that it is unlikely to affect the member's actions in any way.

If excused from participation in a matter, a Board member may not sit with the Board during its consideration of the matter, and may not vote on, discuss, advocate, influence, or otherwise take part in the Board's consideration of the matter, either in public or in private.

Chapter 2.L: Outside Communications

To preserve public confidence in the fairness of Planning Board deliberations and decisions, the Board should ensure that the public and interested parties have the opportunity to know, and respond to, all information the Board considers in making its decisions. The Board should also ensure that each Board member has the opportunity to know and consider the information available to other Board members.

When considering issues involving administrative determinations (such as a preliminary subdivision plan), or quasi-judicial determinations (such a request for a hardship variance from Subdivision Ordinance standards), the Board deals with parties who are directly affected by the Board's decision (such as the applicant and neighbors of the proposed subdivision or variance site). Each of these interested parties needs the assurance that other interested parties will not have unfair advantage in presenting their version of the relevant facts or concerns to the Board. In such cases, therefore, Board members shall avoid communicating with applicants or other interested parties about the proposal except at the Board meetings at which the proposal is being considered. If a Board member receives unsolicited communications about such a proposal outside of a Board meeting, the member has the duty to reveal the communications during the Board's consideration of the proposal. This ensures that the communicated information will become part of the record and that other Board members and interested parties will have an opportunity to consider and refute the information.

When the Board considers issues pertaining to the County as a whole or principally to the general public interest (such as the Comprehensive Plan, the Land Use Plan, ordinance text amendments, and comprehensive rezonings), it often finds access to a broad range of public input helpful in making a decision on the issue. In such cases, therefore, Board members may communicate with interested persons outside of the meetings at which the issue is being considered, but each member has the duty to reveal the general nature and scope of relevant information and opinions gleaned from such communications during the Board's consideration of the issue. To ensure that each Board member's decision is based on the full range of information and public opinion available to the Board, members should avoid committing themselves to a position on the issue during any outside communications.

When the Board considers rezoning petitions, it is considering a legislative determination, but one that generally pertains to a specific parcel of land, and thus directly affects the interests of specific parties. Because rezonings are legislative determinations, and the Planning Board's role is only advisory, Board members are not required to avoid outside communication about a rezoning proposal. To further foster the appearance of fairness in their deliberations, however, Board members are encouraged to do so.

Chapter 3.A: Zoning Ordinance Amendments

Legal Considerations
Because amendments to the Zoning Ordinance are considered legislative actions (as opposed to administrative or quasi-judicial actions), the Board has broad discretion in reviewing proposed amendments. This discretion is, however, subject to important constitutional limitations.

First, the County must have the authority to regulate in the manner proposed in the amendment. Local governments in North Carolina have no inherent powers, but are limited to those granted by the State constitution or enabling legislation. Most of the legislation authorizing county zoning regulations is set forth in Chapter 153A of the North Carolina General Statutes.

Second, the amendment must result in a regulation or rezoning decision that is sufficiently clear and precise to allow its administrative application and to give an individual exercising ordinary common sense a reasonable opportunity to comply with it. This means that text amendments regulating an activity must contain explicit standards or criteria that are capable of being clearly and precisely interpreted and applied in accord with commonly understood meanings and practices within the law of zoning.

Third, the amendment must result in a regulation that advances a legitimate governmental purpose. This means that the regulation or rezoning must serve a clear purpose that is described in the State enabling legislation, that is described in the County's Land Use Plan, or that protects or advances the public health, safety, and general welfare. It also means that there must be an evident link between the regulation or rezoning and the public purpose(s) it serves. The purpose of a regulation may be described in the regulation itself, in the ordinance by which it is adopted (usually as a "Whereas . . ." statement), in reports and memoranda on the proposed regulation, or in a comprehensive plan.

Fourth, the amendment must not result in the "taking"of private property without compensation. This means that the regulation or rezoning must leave owners of property to which it is applied one or more uses that are economically viable. (It does not mean the regulation or rezoning may not result in a reduction in a property's value.)

Fifth, the County must follow established procedures when reviewing, holding a hearing on, and deciding an amendment petition. This means that the Planning Board's review of an amendment petition must comply with all applicable procedures set forth in the applicable ordinance and in the Board's Rules of Procedure (particularly those requiring the Board to base its recommendations on express conclusions as to whether the amendment is consistent with the Land Use Plan and otherwise advances the public health, safety, and general welfare).

Stephen Sizemore, AICP, is the editor of Land Use Law & Zoning Digest and Research Staff Attorney. He works in the Chicago office of the American Planning Association. He was formerly a planner and land-use attorney in the Wake County Planning Department.