City Council Fails to Score in Red Zone Ordinance Again

Sometimes the absurdity of what passes for proceedings in the city council is just too ridiculous to ignore. Granted, this may not be as important to some people as the latest news on Jenny McCarthy, but please indulge me for a moment while I try and make sense of the latest council capers. You can read more about Jenny later.

It seems that for “upwards of six months”, according to the Mayor, he and staff have been discussing consolidating the Zoning Board of Appeals and the Plan Commission. The Mayor revealed this fact at the last council meeting on September 3rd because the council didn’t seem to be aware that this policy was even being considered until presented with the peculiar motion to hold a public hearing on it before the Plan Commission. You might be asking yourself at this point, “But isn’t the Mayor for complete transparency in government?” And the answer would be “completely”, according to his own post right here http://geneva.patch.com/groups/kevin-r-burnss-blog/p/bp--mayor-burns-agrees-with-complete-transparen... on Patch during his recent successful bid for re-election.

You might also think that that deciding public policy behind closed doors doesn’t sound very transparent, but you would be wrong. That’s because there will be a public hearing on this policy and everyone will have a chance to voice an opinion. The hearing before the Plan Commission is just part of the natural order. But the City Council makes plenty of policy decisions, or approves them anyway, and most of the decisions don’t require a public hearing. They do require an open public meeting and must be part of a public agenda. So why is this different? Well it’s because the City Council, or at least the Mayor, intends to modify the text of the zoning ordinance and that requires a public hearing before the Plan Commission. But there are some less obvious “rules” associated with this particular action as opposed to typical ordinances passed by the City Council.

One of these “rules” is that the council and the public are not supposed to discuss public policy once the Mayor has decided that we need to hold a public hearing on it even if we’re not quite sure what the policy is, how it was decided, or exactly what we’re asking the Plan Commission to consider. This presumes the creation of some policy magically out of thin air with no open discussion of whether or not the City Council wished to advance such a policy. No wonder poor City Planner David DeGroot seemed so confused when he said it was his “understanding of this proposal is that we were requesting the council's direction and authorization to draft the detail code amendments that would be considered at a Plan Commission public hearing which would consolidate the two commissions and if we didn't receive that authorization then it was the council's policy decision not to consider that consolidation”. Being the very capable and conscientious city planner that he is, I believe that Mr. DeGroot’s instincts were correct. However, this was not the intent of this particular motion. The direction had already been set by the Mayor, who took responsibility for this particular policy, and all that was “necessary” was council approval to advance as yet unknown text amendments to the Plan Commission for a public hearing. 

We’re supposed to embrace the process of the Mayor and city staff crafting public policy behind closed doors prior to a public hearing. But we don’t want the City Council interfering by discussing it in open session, and happily, the council is usually obliging. The Mayor says we do allow some leeway for the public to speak on these issues in open session, although we have to “be careful not to hold the public hearing before the Plan Commission”.  After all, we wouldn’t want to spoil the surprise for the Plan Commission, the public and the City Council. I’m sure that was the Mayor’s concern when he suggested that Chairman Ron Singer muzzle Alderman Brown at the last COW meeting in August. 

So along with the City Council, we won’t know any details about what the Plan Commission will be considering until we see the agenda and packet for the meeting in October. Hopefully, the Mayor and city staff made wise decisions for all of us because there are a few things I’m concerned about. For example, will the appeal process in the new Planning and Zoning Commission be recommendatory or regulatory? A leading municipal law firm says in a handbook for zoning administrators that, “Plan commissions and zoning board of appeals are recommendatory bodies, except in the rare case where a municipality gives to the Zoning Board of Appeals the power to fully decide requests for variances”, a power that our current ZBA has. Some cities allow their zoning boards to regulate residential property, but only to review commercial property variance requests. Will there be any conflict between the recommendatory powers of the planning function of the new Planning and Zoning Commission versus any potential regulatory powers of the appeal function? What are the inefficiencies this consolidation plan addresses and could we have addressed them in any other fashion? If the ZBA really only meets every couple of years, what are our real gains in efficiency versus the time and effort already expended in the consolidation effort? Don’t fewer ZBA meetings mean that most people are OK with our zoning ordinances and isn’t that a good thing? How many members will the new board have? What will be the membership requirements and terms? 

I would have been more comfortable with having the people we elected discuss and determine the answers to these questions and others before passing the issue on to the Plan Commission. But I’m funny that way. I don’t like to sign contracts I don’t understand and I don’t like to sign petitions I haven’t read, which is effectively what the City Council did in this case. But we’ll just have to wait for the Plan Commission to hold its hearing, determine the facts, and to forward a recommendation to the council. 

At that point the issue finally returns to the City Council for their input. And this is the really ridiculous part of this whole process. Here we are discussing a plan to reduce inefficiencies while saying that the City Council, which is the real petitioner in this case, should only have input as the last step in the process after the public hearing. The City Council will not be presenting the petition, but the council is the recognized author of the petition. Of all the interested parties, the petitioner should have the clearest idea of what is supposed to be accomplished by the petition submitted to the Plan Commission.  Otherwise, the whole hearing is a waste of time for the petitioner, for the Plan Commission, and for the public. If the petitioner is not in favor of the petition just what is the purpose of presenting the petition and why are we spending time considering it? Plan Commission hearings are not trial balloons for vetting public policy goals. That theory is at odds with the purpose of the Plan Commission, which is not a policy-making body. Any such hearing is a monumental waste of time if the City Council is not already on board with the policy they present to the Plan Commission for a hearing. 

In cases where the City Council is not the petitioner, it does make sense for council members to withhold comment until the matter is forwarded to them by the Plan Commission. But it makes no sense for the City Council to submit an essentially fill-in-the-blanks petition to the Plan Commission for consideration. This puts the city council in the awkward position of the sports figure who couldn’t answer questions about most of the anecdotes in his ghost-written autobiography. 

Under our current zoning ordinance one of the duties/responsibilities of the City Council is: 

To direct the Community Development Department, Director of Community Development, Plan Commission, or Zoning Board of Appeals to conduct such studies, research, or other actions as appropriate in the review, and administration of this ordinance. 

Prior to holding a public hearing, the City Council should have delegated this as a joint research project for Community Development, the Plan Commission, and the ZBA to analyze the options and to reach some sort of consensus about the desired results and what the best approach to achieve those results would be. After all, these three groups are most familiar with existing functions and problem areas and they will be most affected by the outcome of this decision. The City Council could have then looked at the recommendations and proposed specific changes to the zoning ordinance. And then we would have had a productive public hearing. The ZBA appears to have been left out of the process entirely and the Plan Commission appears to be heading for a quagmire that does not have the informed consent of the City Council as befits their role as petitioner in this process. 

Despite some of the misleading statements you might have heard at the City Council meeting, city code states clearly that text and map amendments “may be initiated by the city council, plan commission or any person owning property in the city” and that “the city council may propose amendments by forwarding its written proposal, which shall set forth the proposed amendment, to the community development department for processing in accordance with the procedure set forth in this title”. This does not mean that ideas may not originate with city staff. Obviously, the council relies on staff for their expertise in analyzing zoning issues. However, the council didn’t deliver anything close to a written proposal outlining recommended amendments to the zoning code because they hadn’t even discussed the particulars of what the amendments were intended to accomplish outside of the rather vague goal of consolidating the two boards. And the council hadn’t even reached consensus of whether that was a desired goal or not. They merely wanted to have it discussed, which they could have and should have done so in open session using the appropriate motion and agenda item. 

I think that consolidation is certainly worth considering. But I think we’ve gone about it all wrong. The City Council needs to take a more active role in the process and the Mayor needs to note that he, along with the members of the City Council, constitute the “corporate authorities”. That means the Mayor and council members should act in concert to draft policy. Undermining the role of the City Council in the policy-making process is not a sign of leadership and neither is intimidation. Taking responsibility for the crafting of this or any other policy by the Mayor in no way diminishes the harm caused by attempting to circumvent the transparent formulation of public policy, a process that the Mayor claims to advocate. Perhaps one day the Mayor will learn what constitutes true leadership along with what the term “advice and consent” means, something we’ll leave for further discussion in a future post.