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Planning commissioners clash over private meetings
Split commission calls for revisions to policy that discourages meetings between commissioners and applicants

by Gennady Sheyner

A Palo Alto policy that discourages planning commissioners from meeting privately with developers whose projects are under review could be on its way out, despite complaints from neighborhood leaders that the change would deal a major blow to transparency.

For the second time in two years, the Planning and Transportation Commission is considering scrapping the policy, which states that "direct conversations or correspondence with an applicant, and applicant's agency or other interested party about a pending application outside of a public meeting are strongly discouraged." On Wednesday night, a split commission directed staff to draft revisions to this policy.

A year ago, a similar proposal fizzled by a 3-4 vote, with commissioners Arthur Keller, Karen Holman, Susan Fineberg and Eduardo Martinez dissenting. Since then, Holman has joined the City Council and Greg Tanaka replaced her on the commission. On Wednesday, Chair Samir Tuma joined the proposal's three authors — Vice Chair Lee Lippert and commissioners Dan Garber and Tanaka — in directing staff to draft revisions. This year, Keller also voted in favor.

In their proposal, the three commissioners noted that the City Council doesn't have a policy discouraging outside communications with project applicants. This creates a loophole that allows the applicants to appeal directly to the council and ignore the commission's recommendations.

"This conflict has encouraged application process 'short circuits' in the past which has, at times, limited the utility of the Planning and Transportation Commission's work," the memo stated. "Applicants appear to have used this loop hole to gauge their need to heed or ignore the direction and action of the Planning and Transportation Commission regarding their application."

Garber pointed to the example of Alma Plaza, John McNellis' mixed-use development that gained the city's approval last year after years of intense negotiations and neighborhood criticism. Garber said the sense in the community is that the developer basically ignored the commission's recommendations because he knew he could speak directly to council members, who had the final say on the project.

Tanaka said the present rules, by discouraging commissioners from visiting sites or talking to applicants, force the officials to act on incomplete information. The proposed policy would enable commissioners to get more information and, in doing so, actually promote transparency, Tanaka said.

"We're looking at these projects through a very thin straw, and it doesn't do the project or the public justice," Tanaka said.

The memo proposes to add a series of other rules, including ones "strongly encouraging" commissioners to receive training on appropriate communications, to disclose any meetings that had taken place and to publicize any written materials connected with the meetings. It would apply to "planned -community (PC) zone" projects such as Alma Plaza and quasi-judicial hearings.

"We are recognized throughout the bay as one of the most difficult cities to get work done (in)," Garber said, citing a recent case in which a resident spent a reported $500,000 over three years to get the city's approval to demolish and replace a home in the Professorville neighborhood.

"There's nothing to be lost by engaging," he added. "Cloistering ourselves from the community doesn't help us — it's not what Palo Alto is about."

Keller argued vehemently against the memo, but ultimately joined the majority after the authors agreed to add new policies guiding disclosure of information gleaned at the private meetings. He said he reserves the right to vote against the memo if these rules aren't stringent enough.

Fineberg and Martinez both argued that the change would create new problems rather than solve existing ones. Fineberg said the commission is now respected for its impartiality and integrity and argued that the proposed change would undermine this reputation.

"Anything that we have that allows us to act with impartiality, with a firmness, with compliance and with the difficult issues that are caused by human nature, I think, keeps us in a better place," Fineberg said.

Martinez said the change would add a new problem in the public's "perception of us as a city."

College Terrace resident Fred Balin, land-use watchdog Tom Jordan and Palo Alto Neighborhoods President Sherri Furman also lobbied the commission Wednesday to hold off on making changes. They noted that the council's Policy and Services Committee is now revising the council's own procedures. The changes would prohibit the council from talking to applicants until the planning commission and the Architectural Review Board have completed their deliberations.

Furman said one of her group's priorities is transparency and openness and urged the commission to continue discouraging private meetings with applicants.

Balin and Jordan asked the commission to hold off on any changes until after the council makes its revisions. Jordan described the commission's consideration of the colleagues' memo as "two ships passing in the night."

"It doesn't give the citizens of the city a great deal of confidence to have a majority changing the rule one way while the council is changing it the other way," Jordan said.

Staff Writer Gennady Sheyner can be e-mailed at gsheyner@paweekly.com.

Posted by south PA Watcher, a resident of the South of Midtown neighborhood, on Nov 11, 2010 at 2:28 pm

I presume this would also free them to meet with members of the public?

Whatever policy they decide on, I think it should be consistent with Council's policy. They should be working on this closely with Council...and Council should drive it. PTC is an appointed advisory body to Council.

I like that they are going to require disclosure of these discussions (I hope that means full, public disclosure...and how will that be defined, I wonder.)

Posted by Institutionalized corruption, a resident of the Evergreen Park neighborhood, on Nov 11, 2010 at 7:17 pm

"the memo's three authors -- Vice Chair Lee Lippert and commissioners Dan Garber and Tanaka"

Pretty funny! Lippert and Garber are architects. They can make business contacts at the meetings with developers. And get new arguments to support the developers. They work for developers. They have already profited handsomely since being on the Planning and Transportation Commission.

Tanaka is a newbie who seems to believe what the money people tell him.

To imply that this is self-dealing and potentially corrupting is pretty obvious. For shame.

Posted by MJ, a resident of the College Terrace neighborhood, on Nov 12, 2010 at 10:23 am

This allows developers a chance to manipulate commissioners behind the scenes, and an almost irresistible opportunity to cleverly skirt or shade the truth. Even outright deceive without anyone outside that room being the wiser.

Especially when it comes to new commissioners who do not have the same level of knowledge or experience to ferret out the truth.

Too much money is at stake for developers not to do everything they can out of the public's sight to influence the outcome.

Even in a perfect world, excluding the public from hearing what developers are saying to commissioners in private is NOT transparency. It is naive to think otherwise.

Posted by Fred Balin, a resident of the College Terrace neighborhood, on Nov 14, 2010 at 10:39 am
Fred Balin is a member (registered user) of Palo Alto Online

The article states: “They said in the memo that the lack of a city council policy discouraging communications with applicants creates a loophole that allows applicants to appeal directly to the council and bypass the commission's recommendations.”

The City Council does have a written policy discouraging outside (“ex parte”) communications in quasi-judicial hearings (i.e., where council members in effect act as judges). However the policy is blatantly disregarded, does not apply to Planned Community (PC) applications, and is not as explicit as the Planning Commission’s.

This year, the Council’s Policy & Services Committee has strengthened the wording, applied it to PCs, and lengthened the applicable time frame to extend back prior to Planning Commission and Architectural Review Board recommendations.

If approved by the full council, it will address the “loophole” cited in the Planning Commissioners’ Colleagues Memo: that an applicant pays attention to the commission relative to his or her calculus based on direct communications with council members.

So why abandon the current Planning Commission policy pending final council action on a proposed remedy? Because some commissioners feel the section on ex parte communications will still be “conflicting” with that of the council.

Just after public comment ended on Wednesday evening, the Chair expressed the conclusion that the revised wording at Policy & Services continues to permit the council to engage in ex parte discussions after the Planning Commission’s work is done.

This was a surprise to community members closely engaged in and following the process throughout the year. This statement is not consistent with our reading of the updated wording, our understanding of what occurred at Policy & Services, or the reforms we have been pursuing. Otherwise we would have commented long before this.

A council norm to prevent ex parte discussions before the planning commission acts and then allows it afterward solves little. PC applicants, for example, know that under our current system, no matter what happens at the Planning Commission, they can appeal the decision to the council, and that they can change their application, with no penalty, and at any time, up until or even when, the council meets.

John McNellis may have already counted council noses through direct communications when his project was before the planning commission in March 2007, but this is not why Alma Plaza became the poster child for manipulation of the public process in a Palo Alto land use application.

Rather it is because it is widely believed that as the Planning Commission’s decision was about to come to the council in April, 2007, he privately communicated an alternate proposal to a council member, who would become its leading proponent at the council meeting.

That proposal was revealed to the balance of the council when it somehow appeared in front of them at the dais.

Sadly, council allowed the agenda item to proceed and the new proposal to come forward.

Staff was bypassed, the public was bypassed, the balance of the council was bypassed.

The result was a tortured travesty of the public process, where staff and the public were asked to comment on a proposal they had not seen, where council asked (i.e., "bargained with") the applicant as to what he might be willing to accept, and where confusion reigned to such an extent that immediately after council decision, the swing vote said she thought she was voting on something other that what was actually before them.

The current process at Policy & Services can prevent this or a similar occurrence via a closed window beginning 5 days before staff report is released and extending through the council meeting during which applicant changes to a proposal can lead to postponement of the item and further review.

While this incident at Alma Plaza was a singular abuse of ex parte communications, it remains extremely difficult for the public to understand the value of what can be gained outside of a public hearing as compared to the loss in trust and transparency.

The Planning Commission should tread very carefully before tinkering with the current policy, and the council should strengthen its procedures, both in word and deed.