Christopher R. Conard, Esq. conard@coollaw.com Amy N. Blankenship, Esq. blankenship@coollaw.com Coolidge Wall Co., L.P.A. 33 West First Street, Suite 200 Dayton, Ohio 45402 Telephone: 937-223-8177 Fax: 937-223-6705
Discussions with applicant before meeting Reference to ex parte communication during meeting- not part of record
Examples Phone calls Letters Personal visits Email
MUST recuse if necessary If unsure, raise the issue ahead of time and get a legal opinion Failing to recuse can result in an issue down the road
Abstention vs. recusal Abstain" in Black's Law Dictionary is "[t]o voluntarily refrain from doing something, such as voting in a deliberative assembly." In Black's, recusal is defined as "[r]emoval of oneself as a judge or policy-maker in a particular matter, esp. because of a conflict of interest."
Therefore, refraining from voting is considered "abstention." One who refrains from voting "abstains." Removing oneself from consideration of an issue is "recusal."
A public official is prohibited from participating in a matter involving another party where the relationship between the official and the other party is such that the official's objectivity or independence of judgment could be impaired with regard to matters that affect the interests of that party. Advisory Opinion No. 91-004
Prohibited from participating in any matter that would provide a definite and particular pecuniary benefit or detriment to property in which the planning commission member has an interest. May vote or discuss a general zoning issue, even if the planning commission member would derive a benefit, if the vote would provide a uniform benefit to all citizens in the jurisdiction. Ohio Ethics Commission Advisory Opinion 88-004
Ohio Rev. Code 102.03(D) says, No public official or employee shall use or authorize the use of the authority of influence of office or employment to secure anything of value or the promise or offer of anything of value that is of such a character as to manifest a substantial and improper influence upon the public official or employee with respect to that person s duties.
The standard is: Would the commission member s participation provide such a definite and particular benefit to the member s private interest that it could impair his independence of judgment in making a decision? Ohio Ethics Commission Advisory Opinion 88-004
May not participate in a vote to widen a road which passes in front of the planning commission member s property or install new water and sewer lines that would service his property. May vote on a new water treatment plant that would provide a benefit to the community as a whole. Ohio Ethics Commission Advisory Opinion 88-004
May not discuss or vote on the approval or disapproval of a zoning change for property, where the planning commission member is interested in buying the property and a disapproval of the change would make the purchase possible. May discuss or vote to rezone property owned by a community improvement corporation of which the planning commission member is a trustee where he has been designated by the city to serve as trustee in his capacity as a city official (because the benefit would accrue to the City, not the commission member). Ohio Ethics Commission Advisory Opinion 88-005
#1 and #2 boil down to due process and fairness issues "A fair trial in a fair tribunal is a basic requirement of due process. This applies to administrative agencies that adjudicate, like the BZA, as well as to courts. N. Fork Props. v. Bath Twp., 2007 Ohio 243
Always consider the possibility of a court reviewing decision Swear in witnesses if necessary Address standing issues
unconstitutional, illegal, arbitrary, capricious, unreasonable, or unsupported by the preponderance of substantial, reliable, and probative evidence on the whole record. 2506.04
BZA should only consider substantial, reliable and probative evidence, public comment should be very restricted if not completely prohibited as Ohio courts have determined that public comment is not probative evidence.
The private litigant has standing to complain of harm which is unique to himself. In contrast, a private property owner across town, who seeks reversal of the granting of a variance because of its effect on the character of the city as a whole, would lack standing because his injury does not differ from that suffered by the community at large. Willoughby Hills v. C. C. Bar's Sahara (1992), 64 Ohio St. 3d 24
A Meeting has 3 elements: Prearranged gathering Attended by a majority of members of the public body Arranged for the purpose of conducting, transacting, deliberating or discussing public business
A Record is Any item kept by public office Stored on fixed medium Created, received or sent under jurisdiction of public office Documents organization, functions, policies, decisions, procedures, operations or other activities of the office
Email can be a public record Whether an e-mail is a record (serves to document the organization, functions, policies, decisions, procedures, operations or other activities) will depend on content This is true of any communication, whether electronic or paper
E-mail messages, text messages, and correspondence are "records" subject to the Public Records Act if they are (1) documents, devices, or items, (2) created or received by or coming under the jurisdiction of the state agencies, (3) which serve to document the organization, functions, policies, decisions, procedures, operations, or other activities of the office. State ex rel. Glasgow v. Jones, 2008 119 Ohio St. 3d 391
Read your packets thoroughly Ask questions of staff Be informed on relevant issues
BZA Duncan Standards: Will the property yield a reasonable return or can there be a beneficial use of the property without a variance? Is the variance substantial? Would the variance cause a substantial alteration in the essential character of the neighborhood or cause a substantial detriment to the adjoining properties? Would the variance adversely affect the delivery of governmental services? Duncan v. Middlefield (1986), 23 Ohio St.3d 83
BZA Duncan Standards: Did the property owners purchase the property with the knowledge of the zoning restriction? Could the problem be solved in some other manner than the granting of the variance? Would the variance preserve the spirit and intent of the zoning requirement and substantial justice be done by granting the variance? Duncan v. Middlefield (1986), 23 Ohio St.3d 83
Robert s Rules of Order Make proper motions and pay attention to the details
Not relevant Does not support a strong record- just muddies the water Cite to relevant code section to support your argument for or against a project
Know what your board or commission s role is and be familiar with the nature of the action taken.
The test for determining whether the action of a legislative body is legislative or administrative is whether the action taken is: one enacting a law, ordinance or regulation, or executing or administering a law, ordinance or regulation already in existence. Donnelly v. Fairview Park, 13 Ohio St. 2d 1 (Ohio 1968)
When a person makes a request to a city council to rezone property, this is a request for legislative action and the action of the city council in rezoning property may not be attacked in an appeal under R.C. Chapter 2506." However, a decision by a political subdivision as to whether to grant a variance "is made in a judicial capacity and is thus appealable. BP America, Inc. v. Council of Avon (2001), 142 Ohio App. 3d 38