Planning Board - Regular Meeting

acting chair tonight just for tonight's meeting the duties are very limited opening the meeting and then closing the meeting the rest of it will be really will we be um appointing someone for this meeting and tomorrow's meeting and electing uh a chair and vice chair at the February meeting

yes so I would at the end of the meeting I'm hoping we can elect a chair for tonight's meeting um a strict reading of the rules and the ordinance. Um, we should wait to elect a chair for tomorrow night's meeting until tomorrow night. So, it's for that meeting. Um, but hopefully we can leave this meeting understanding that there's somebody willing to serve that the board thinks they can support for a vote tomorrow and then we will have the the annual electionary. Well, I'm willing to serve.

You're willing to serve? We need a second to accept his willingness to in an absence of a chair if the vote if the board could vote. Um if there's no other nominees vote to electing chair tonight. Thank you. Can I stay here? You can [clears throat] all all of these mics. You have to touch every one of these mics to talk. I think everyone except for maybe the center one. They might all require it.

All right. So, I'll open the uh a special meeting of the uh Auburn Planning Board. I understand we've been asked to attend a meeting this evening to have some training, general training. I don't know if it's on policies and procedures or just the freedom of access act, but I'm just going to turn it over to staff and let them run through whatever agenda they've prepared for us. Thank you. Yes. Uh we have an overview from uh Emily uh the city clerk and then we have uh Dan here, the city attorney to do an overview of policies and procedures and general board uh rules. Hi, thank you uh for for being here tonight. Um [clears throat] some of you have probably already um received FOA training as you've been on the board. Um however, I it's important to cover this because every time that I uh learn more about FOA, I learn a little something different every single time. Um so what I I have given you in front of you is the MMA legal services. Uh it's from the legal notes um from the main town and cities publication. Um, and it's a it's a helpful little uh sheet that talks about common violations of open meeting laws. So, we'll reference some of those. Um, and you'll also have a sheet in front of you that's a certificate of completion of FOA training. Um, and if you would complete that, then I'll have that on file. Um, that we have renewed this. So, if you'll skip to the next slide, I'll just cover a couple of slides here about uh public proceedings. Um, [clears throat] the Freedom of Access Act is the right to know law. um pertinent to Maine that grants public access to most state and local government. There are two forms um that we're really going to focus on here. Public proceedings and public records. Public proceedings is defined in state law. It includes any meeting of a municipal board, committee, subcommittee, commission, or panel where the transaction of any function affecting citizens is made. So, it's certainly including the planning board

um and any of your business that you're going to be conducting here. Um so public public notice is required um in ample time and manner. Our charter does state two business days. Um and I know that there may be other statutory requirements that need to be met um specific to the planning board. Um and then if there are emergency meetings, we are required to notify the media as well. So I know you guys have a um regular meeting schedule here where notices is made to the public and public hearing notices go out um as required. public rights um to attend these public proceedings. They have the right to attend and to observe. They have the right to take notes, to record and televise. Um however, there's no right to participate or be heard um unless there is a public hearing and a lot of the business that you would conduct and as planning board um has to do with public hearings. So in that case, there is a right for the public to participate. Um however, the public does not have a right to disrupt proceedings. All right, the next slide. Um, [cough and clears throat] this talks about executive sessions. Um, executive sessions are allowed in certain circumstances where a um closed meeting that's not um available to the public would allow to be held. Um, it's strictly regulated for subjects. These subjects are um on the screen here. Um, they have to begin in public. There's an advertised meeting. Um there's a vote recorded three-fifths majority vote to enter executive session and it is for discussion um only. No final decisions or votes can be taken in executive session. So if that um were to be the case, there would be a motion to enter executive session. You would declare yourselves out and then you would have a vote in the public session for whatever um was deliberated on. Um I think [clears throat] there's a slide right above that. Eric talks about remote meeting participation.

Um remote participation is allowed in the in the statute. However, it does require a written adopted policy. Um and this board and the council have has not adopted a policy regarding remote participation for meetings. Um one interesting fact is that if um the board were to allow um members to participate remotely, it must also require the public to participate remotely. And so there's a lot of logistical um you know uh considerations in something like that and uh the board and um the council have not taken action to allow that. Um so I'm not going to spend a lot of time talking about that, but it does come up as a question every once in a while if remote participation is allowed. Um what would be allowed is having a guest speaker or somebody participate um remotely to just provide information but not um to be a member of the public or a voting member attending. All right. Um next slide talks about public records. So we've covered public proceedings. Now we talk about public records. Um and this includes any written printed graphic matter or anything that's pertaining to city business that's in the possession of a custody or municipal official. Um and it's connect used in connection with government business. So any of your notes, any of your um agenda packets, anything that you are conducting through email um these all are public records um if it's if it's um having to do with city business. And next slide talks about public right to access records. Um, so this really gets into the FOA requests and as the public access officer for the city, I'm I'm the one responsible for handling these sorts of requests. Um, so any person may submit a request. Um, verbal or written requests are okay. It doesn't have to be a written request. Um, there's no requirement for the requesttor um to um sorry, there's no requirement to create or explain the records. Um, so we can't ask, you know, what do you want these

records for? And standing requests are not allowed. So um you know somebody can't say I want you know all the agendas for the planning board going forward for a whole year and a half and you know that's all publicly available but an example um record requests. So any person who's seeking a record can uh request to view or copy records in person. They can request that copies be made or emailed and they have to schedule that during the regular b business hours um that we're open. Um, so my office sees about 20 to 30 of these general requests a month. Um, and a lot of them have to do with code and permitting files. They want to see the, you know, permit file for a a business property or something to that effect. Um, but sometimes I get large requests for all emails, um, regarding a certain item. Um, so our IT staff is able to go into our email server and provide that. And Eric, can you correct me if I'm wrong? Do do the planning board members are they provided a city email address? Yes.

Okay. So, for your city um business, what I highly recommend and and it's probably a policy is that we use our city email um when conducting planning board business because it keeps all of your records on the server so that if we do have a request like this or if there is an information, it's all recorded on the server and that keeps things nice and tidy. So, um you know, the thing about FOA is it does not follow the platform on which you're conducting business. So, a public record is a record. So if it's whether you're conducting your business on your personal phone, your email, um over text or phone phone voicemails, all those things become a public record. So um you know to to reduce this, we want to kind of capture it all onto our city email and have a a nice place to keep all of those that material. If you are conducting, you know, email transactions on a different in a different way, if that happens, um you can forward it to your planning board account. Um but but just know that those records are still public records whether they are on your personal phone or your personal email. Um so if asked we would have to um also account for those records as well. Um all right so the next so this gets into um the role of the public access officer. Um we do have a of a responsibility to acknowledge that request within five business days. that does not mean that we have to um fulfill the request within five business days, but we do have to acknowledge it. Um so, you know, some some work goes into especially these large requests, figuring out who's responsible for those records, where how long is it going to take to compile them, and then if it's over two hours, um we do charge $25 an hour. Um and then we have to get back to the requester, ask do you still want this material, and then complete com compiling the records and and getting it to the requester. Um so some of these can take some time to do. Um if we do have to refuse record requests, we we have to must give a

denial in writing. We have to send that um within 5 days. Um and there has to be a reason for that denial. And of course there are violations and penalties as well if we're um not following this policy. So part of making sure that we're um doing that is by providing training just to make sure that um you know everybody's aware of FOA and that um we are working as public in in the public's business. So that means that we have to keep things transparent. Um and again I'm going to refer to this sheet here that talks about violations of open meeting laws. So um by not you know by following these you're you're going to keep out of trouble. Um so you know don't have discussions over email. Um it the reply all button should just be cancelled I think on the email server because um it's easy to get in from discussion of topics into deliberation. It's very easy to do that. So um you know keep keep your conversations through email about um logistics. I can meet on Tuesday. I can't meet on Wednesday. I'm not going to be here at the next meeting. All those things are fine. Um but but refrain from discussing matters over email. Um meeting by chance. This occurs when three or more members are showing up for social functions or other at other times and then proceeding to talk about city business. Um, obviously not a good thing to do and is a violation for FOA. Um, any any uh workshops or sitewalks that you may have are also considered a public meeting where three or more of you may be may be together. So we'll need to know um about that and the planning staff will help um to advertise for those items um that you may need to to meet for um insufficient notice. So we are required again to give reasonable time to for the public to be aware and attend. Um and then um you know improper executive sessions probably not affecting this board as much but whenever we do enter executive session it's important that we have you know those procedures in place that we have a vote that we're not voting in executive

session and that we have a um defined reason for entering executive session. Um I'm going to pause here and just ask if there are any questions about FOA that I haven't covered or um questions that you may have about public proceedings or records. Okay, that's what I and I'm sure um our attorney here will speak about exartic um communications and so that will be an addition to this. Thank you. Great. [clears throat]

Thank you, Emily. Um my name is Dan Stockford from Brandon Isacson. I'm a city attorney and uh good to see all of you. Um the focus of my presentation is going to be on um sort of some of the decision-m issues that you face. Um first talking a little bit if you want to move it to the next slide. I'm going to talk sort of what your role is or or what your different roles may be and the distinction between a quasi judicial role, which is what you do when you're hearing an application um and a legislative role, which you may you may be involved in with respect to recommending or considering um proposed amendments um uh that the council should consider with respect to the land use ordinances. Um I'll uh then go into more depth about some of the parameters around um what the quasi judicial role involves and what the legal constraints are around um serving in a quasi judicial capacity. Um and I'll touch upon exparte communications, bias issues, conflicts of interest. Um I'll talk a little bit about best practices for meetings. um and um decision- making and adoption of findings and conclusions. I'll touch briefly on a couple of um freedom of access act issues uh just to to highlight those even though somebody's already covered covered those and then I'll talk a little bit about civility um which I always do when I talk with the public board in in this type of context for the recording.

Okay, great. Yeah, thanks. Um, and maybe do do you mind if you passing your maybe I'll it might be easier for me to walk through the slides if you don't mind giving up your lap. Be great.

Thanks. And I I just wanted to add that um I encourage you to chime in and ask questions as as I go along. I don't want this to just be a a um a lecture or a a dietrod. Um, so please feel free to to interrupt me and and um ask any questions you may have. So touching on the on the quasi judicial role, um, when you're judging an application, you are acting in a quasi judicial capacity. So you're effectively acting as a judge. Um, you know, the the planning board as a body is acting as as the judge. and principles of due process require that when you're acting in that capacity um that you act in a fair impartial manner and I'll I'll get into more detail about what those what that means and and what you should be thinking about when you're acting in that rule. the the contrast to that is um acting in a legislative capacity and there are some circumstances where what what the planning board does is more in the in the nature of a legislative role than a than a quasi judicial role. Um you occasionally do get involved in um considering potential amendments or making recommendations about potential amendments to the council. Um and in that capacity um you would be [clears throat] acting in a legislative capacity. And the big the big difference between the two as far as the rules that apply are that um principles of due process require that you be fair and impartial in the quasi judicial context. There aren't those same constraints around acting in a legislative capacity. So when legislate legislators are free to have bias, they're free to not be partial. They're free to express their opinions. They're generally free to talk

to different stakeholders without potentially infringing on other people's rights. So, you have a lot more leeway when you're acting in a legislative capacity than when you're acting in a quasi judicial capacity. But I'll expand on that. [clears throat] Um, so why why are there different rules when um you're acting in a quasi judicial capacity? The reason is that when property interests are at stake, um, as a matter of constitutional law, um, individuals who have property rights at stake are entitled to due process of law. And I I've got the an actual quote from the Constitution that no person shall be deprived of life, liberty, or property without due process of law. It it's that constitutional provision that gives rise to the requirement that um you observe fair process when you're deciding an application relating to somebody's property rights. Um so you as individual board members and as a body are um required to provide due process to the applicant when you're acting in that role. Um there are certain things that you should and should not do. Um and I'll touch upon some of those and I'll expand a little bit more on some of these as we go along. Um first, um the notion is that the board and its members will be fair and impartial in deciding an application. Um, and part of that fairness is an impartiality is not [snorts] discussing the merits of an application outside of the planning board meeting. So that that touches on exparte communications and I'll I'll talk in

more detail about that in a moment. Um generally you are required to decide make your decisions about an application based on the information that is presented to you as part of the planning board's review. Meaning it everybody should be considering the same body of information as you decide an application. And there's a number of steps that the board can and should take to ensure that that that actually happens. Um that you develop a record that everybody is aware of including Abutters and individuals who may be opposed to a project as well as the applicant who is presenting the proposed um development or project to you for for determination. Um, for that reason, you generally shouldn't be doing your own research outside of the planning board process. You should be making your decisions based on the information that's presented to the full board. Um, in a properly called meeting, I've mentioned fairness and impartiality and so I I

Yep. Ed with respect to the independent research your opinion that that would apply to not driving by a site, not [clears throat] I hate to say going out of your way, but the question I don't know, but sort of difficult to sit here and to be purposefully ignorant of the actual

Yeah. Yeah. generally and and this is actually reflected in the board's rules of procedure. Board members should not be conducting their own site visit. I I believe there's language in the in the rules of procedure that the board has adopted that specifically provide that you should not be doing your own site visit. Now, you may you may, as you point out, Ed, you may drive by that site every day. So, you know, you can't unsee things that you're that you um generally see, but um you really should be basing the information. You should really should be basing your decision-m on information that everybody has and your sort of taking into consideration issue, you know, information that you obtain independently of the full board potentially creates a due process issue. And for that reason, we recommend that you not conduct your own site visit um in in connection with an application.

Yeah. I [clears throat] at the last time we had this training that this came up a bunch and the I don't know if I think this is the right procedure is if there's something that you saw on that driveby that you think would impact your decision you can have staff bring if you can bring it up on a map during the meeting that counts as the public all being able to access the same information that you have. You have to bring have to be able to bring it up in front of everybody. Yeah. And I I think that's that that's a a fair summary of the proper way to deal with um a situation where a board member has gathered information from their own either based on their personal knowledge of the site or otherwise and want to discuss that. Then in order to address it from a fairness um an impartiality perspective, the best practice would be to disclose the information that forer the board member who has that information. proper way to do it would be to disclose it um and put it on the record for the for the full board and that also would provide an opportunity for the applicant or in a butter to be aware that that's information that's being considered and potentially submit relevant information that they want the board to consider about the information that's been brought forward. So I think that that's a good point um and helpful to sort of illustrate sort of simply because you have information that you obtained independently doesn't necessarily mean that that that information doesn't then become part of the record. In fact, if it's going to be considered, it should be brought, you know, surfaced publicly and made open for discussion by the full board.

This is a an area that I really have some problems with. U actually sitting with Eric when I uh first came on the board uh for this term, we discussed this. It's in a community of 62 square miles. it to me it's very difficult just to be looking at topographic map or even a aerial uh uh picture and even if you go and a site where you can get a view of the property that's been t and even that is that permissible if you go to your computer look up an address and you get a a visual of the property Generally, that's discouraged, you know, because it could lead to a an argument that there's information that's being obtained independently, obtained and considered by individual board members that isn't part of the full record and then not everybody has an opportunity to explain or respond to. Is there any way that you know we can we can maybe plan a special on-site visit certainly which then has to become public can there be some sort of an agreement that you know I can understand not stopping and talking to anybody but to me it's very difficult to just look at a map and have somebody describe that property uh and to make, you know, uh, to me a very difficult decision without visually having a much better picture of what we're talking about.

Yeah. I mean, is there a minute that I think a I think a potential way to deal with that would be to surface that with the board and suggest that the applicant be asked to provide a map or that the board look at a map, you know, as a as a body to get a sense of the location of the of the project,

which we do because all applicants do provide photographs. s usually, but sometimes that's very difficult still to not really see it in its entirety in, you know, the greater neighborhood and so forth. Is there a way that the planning board could agree that individually we could without speaking to anybody but just at least pass by the property? You know, I I think my preference from a legal p perspective and sort of keeping it as clean as possible would be in that circumstance for the board to consider a site visit where everybody is is participating. It's properly noticed. The applicant has the opportunity to share information as part of that public process which you know would have to be noticed and and you know the the the rules around um public proceedings would have to be followed um in conducting that site visit. Could the board uh actually take a a municipal vehicle as a group ride by? Would that be also required to be a public uh

right? I mean I think the problem with that is that first it you know the board getting together would be you know it would be hard to avoid discussion

discussions. So, so I think it would be better to do it as a properly noticed site visit um that public notice is provided under the Freedom of Access Act for I'm wondering if there's something in between like we have very good aerial photos now through a software called Eagle View that we can look at um properties from all different angles. We can see the face of buildings or the tops of buildings. Um, we can also use Google Street View, but maybe we could do that in the meeting if asked to try to give that perspective where you can move around and look at different angles.

Yeah. And I and I think you know that would be proper because it would be part of the meeting. everybody would be aware of the information that's presented and it wouldn't have the fairness and and you know potential for ex partake communication issue so would avoid that. Um the the final point I wanted to make in connection with this slide is and and this is a key point is the issue you know the issues you're deciding really are tied to the specific standards that apply to the project and the it's important for the board not to get sidetracked onto issues and discussing issues and considering information that doesn't that isn't tied specifically to the standards and and whether a particular standard has been met. Um, and so things like, you know, the color of the the buildings as presented by the applicant generally would not be relevant to the decision. It would be the specific standard that you're considering as you as you review the applicant as you review the application. Um just a some more points on the on the quasi judicial role that you serve in when considering an application. Uh it's important to remember that you know whether you like or don't like a project or the or the applicant um or whether it's popular in the community are are not things you should be considering. you really need to base your decision- making on the specific criteria in the ordinance. Um, the board

should process applications as fairly as they can. Um, you know, I think consistency we lawyers, you know, generally advocate for consistency and, you know, that would certainly be true in considering applications. But at the same time, if something wasn't done right in the past, um, being consistent um, in the face of the error is probably not the best way to to handle something. So, if the past practice wasn't correct, then um you shouldn't necessarily follow it. Um and then when you're considering public comment and and you will get public comment when there's a public hearing um you know the you really the only relevant public comments not not that you you know wouldn't consider any information that a member of the community was you know got up and shared. Not not that you wouldn't allow them to say their say their piece, but um really the the public comments you should be considering are those that you know address whether the standards have been met and you know whether the applicant has submitted um what they're required to submit under um So, you know, a a key element of of fairness and due process is that um the decision maker not act with bias. And it's not unusual for um planning board and land use decisions to be appealed um on the basis of an argument that the

the decision maker was biased. And often um the the evidence that is used to make that argument um is based on statements that individual uh board members may have made either in in the community um or in the context of a of a meeting to discuss an application. Um, so it's important as as planning board members, you know, to avoid engaging in conduct that could be viewed as bias. So, you shouldn't make up your mind before um you hear an application. You should go in with a um an open mind and a willingness to consider different viewpoints. Um, and you should avoid making statements about an application that would indicate that you've already made up your mind or that you have an axe to grind with respect to a particular application. So, avoid making statements in the community, you know, whether they're public or, you know, just sharing it with with others. Um, and you know that you know, not in a public setting, but in a in a way that if that was reported that that you said it, um, it could it could be reflective of bias. Um, avoid, you know, if there are petitions circulating in the community and some high-profile projects. My experience is that that can happen. as planning board members, you know, you should avoid taking a public position on a particular project either for or against. Um and getting back to um the issue of um not conducting your own research or

your own personal site visit. Um generally um the the planning board if there is going to be a site visit should be making a decision that um you're going to schedule a site visit and that would be noticed as a public meeting and proper process would be followed for that. Dan, could I Sure.

I sense we may be going away from our internal processes here. start talking about participation. Um, we haven't had any what I would consider really controversial projects in the last year, but I could see potential for that. And we don't have a process that allows for robust um presentation by anyone other than I think that you that the process extends to may be affected by a project as well. The applicant itself we limit people to five minutes. They get notice of the meeting maybe 10 days in advance post office uh probably less. Um, I'm not comfortable that if we had a robust opposition that we have a process that allows that to be by our own rules and opponents or proponents, anyone other than the limit with the exception decide to allow an additional five minutes. If you want to present an engineer or wetland scientist or somebody to demonstrate fact that there's really no opportunity to do that. So how do we address that when it never happen?

Yeah. I I I think the it's appropriate for the board to consider um the um process in time frames allowed to the public um you know in you know dependent on the nature of the project and the level of um you know controversy or um you know the level of concern that may be brought forward with respect to a particular application because you raised a good point that um that due process is not only for you know that there's not an expectation of due process only with respect to an applicant but there also needs to be a fair a fair process for those who are opposing it and I think in the case of of a of a hotly contested um project. Um particularly with respect to expert witnesses, um five minutes may not be a fair amount to allow to um you know an abuter who has you know brought forward an expert witness to present information about a project. And in that case, um, it may be appropriate to consider longer time frames, um, to be allowed for some witnesses. So, it it's a little bit of a it's it's a little tricky because you want to be consistent um, w certainly within an, you know, as much as possible within the context of a particular application to make sure that everybody has has um, you know, given a fair amount of time. Um, and but that, you know, I think it's worth considering. Um,

I don't think this issue is addressed in the current rules of procedure, but there it may be worth considering adding some language to the rules of procedure that allow the board to to vote to adopt longer time limits. uh with respect to um a partic you know particular application that may be you know may present some challenging issues with the board's consideration. So I think in that case there you know the process could be something along the lines of you know a discussion by the board that given the nature of and the complexity of particular application you know that additional time be be allotted to um expert witnesses or um some other type of um of you know exception that is grounded in It's it should be grounded obviously in the reality of the situation. Um but to try to do it as as preserve consistency but preserve consistency within the context of that particular application. Um and it may not be in that case five minutes for every witness may not be the best or fairest way to approach it. So, I I think by necessity, it's something that the board will need need will need to address on a case- by case basis. But there's certainly the ability of the board to adopt some modifications of the time limits or the procedures um based on the specific complexity of a project. And would would you agree that if we don't revise our policies and procedures that as a board when faced with that situation that we could revise them on

the spot? Yeah, I that's right. You you're always free to suspend the rules and vote to suspend the rules. So even without a modification to the to to the procedures, I believe the board has that inherent authority to to suspend to suspend its own rules. [snorts]

So um as far as exparte communications um the you know it it's a you know a significant um issue when board member when you wouldn't want to be in front of a judge um on a speeding ticket or or otherwise and you know have the judge talking to you talking to the police officer who's bringing the the charge against you outside of the context of the hearing uh and you know getting inside information from from the police officer or um you know be potentially being swayed by um by witnesses in the case that you're not privy to. Um and so as as the judges in proceedings that come before you, um it's important that you avoid um engaging in communications about the substance of an application with the applicant with the butters who may come before you. And even, you know, best practice would would suggest that better not to get into a substantive discussion with staff about an application um that is pending before the board um outside of the context of of the board's meetings on that application. And you know I I think the I I think the un potential unfairness or perception of unfairness um of doing that is pretty clear. Um, and there's a lot of cases that the main courts have [snorts] heard on the on these issues where people bring forward concerns about exparte communications

and that it's that those types of issues that often can form the basis for a legal challenge of decisions by municipal boards. So, um, just, you know, my counsel to you as as the city attorney is to to avoid doing that to to, you know, discuss an application within the context of the planning board, but don't don't be talking to the parties um or opponents of a particular project um outside of that context. And same same would be um with respect to your deliberations um you know consistent with the freedom of access act you've heard about tonight um you know the public business is intended to be conducted in the public and so if if you're deliberating um on issues in a non-public setting among yourselves then that is a violation of spirit if not the letter of Freedom of Access Act and also a potential due process violation that could lead to uh your the ultimate planning board decision being challenged. So one thing that you may face is people come up coming up to you and wanting to talk about an application. Um, and I just in this slide I just wanted to touch on how you might address that type of situation. Um, you know, I I think you don't want to be rude to people that come come up to you, obviously, you know, particularly their friends or acquaintances, members of the public. Um but um you should draw a firm line on avoiding

those discussions and and you know this type of response would be an appropriate response. Thanks for bringing your you know thanks for expressing interest in the application. I'm sorry I can't talk about it outside of the planning board meetings. Um I you know I'd like to hear your views. Um but we need to hear and consider information about a project you know to as a board rather than individually. There is a process by which you can participate and submit comments either at the public hearing or presenting information in writing before the before the public um meeting. And um I'd urge you to do that. Um and There are specific rules in your rules of procedure as far as when information needs to be submitted, you know, in advance of a meeting. And you might you might remind um somebody who's um trying to trying to initiate a a a discussion about a project. might remind them of what those time frames are, but encourage them to share their comments that in the in the proper forum rather than with individual board members um outside the context of the the planning board process.

I'm embarrassed keep asking questions, but are our policies and procedures online? They are. We' be much better off just Yeah. Refer to them. Yeah. Yeah. Correct. That's safer than trying to characterize them. Agreed.

So that I wanted to before we get into sort of a little bit discussion of kind of conduct of meetings and and the findings and conclusions that you um you know you're required to adopt as a board. Um I wanted to fairly quickly run through the conflict some of the conflict of interest rules and this this is you know sort of an extension of the bias discussion. Um but there are specific statutory um and common law and ordinance rules around conflicts of interest that you should be sensitive to. Um so I'm going to talk about those three elements in fairly rapid succession. But from a statutory perspective, um there is a conflict of interest provision in Maine state law that basically requires that um a a a municipal official or member of a municipal board has to ex abstain if the application relates to a ent an entity that you as a board member have at least a 10% ownership interest in. So if there was a project that came before the board and you you know from a from an entity for example that you um were partial owner of and you owned at least 10% of of it then you would be prohibited as a matter of law from um voting or participating in the discussion of that application as a planning board member or attempting to even attempting to influence the decision decision as a board member. So in that case you would

be legally required to to recuse yourself and um and step down from the deis and not participate or or try to influence the scheme. There's a a common law rule that generally prohibits um municipal officials from um having a personal interest, personal financial interest in a in a decision or serving on a or making or acting as a board member in a decision that affects um something that there's a personal financial interest in that is less well defined, but it's important to be sensitive to those circumstances. And if you um are if you do have a financial interest in an entity that comes before the board, generally the best practice would be to um recuse in that case. And then there's a general rule that municipal officials should avoid even the appearance of a conflict of interest by either disclosing their interest and saying I feel I can notwithstanding this potential conflict. I think I can impartially hear the hear the matter or abstaining um and just choosing not to participate. Auburn also has a conflict of interest and ethics ordinance that is broader than um the statute and the and the common law. um which basically prohibits

um um uh participation in a matter when there's a potential or reasonably perceived conflict of interest arising from a personal relationship or a financial involvement that would cause a reasonable person to believe that you can't act impartially and fairly in that matter. And I won't go into a tremendous amount of depth about the the the standards, but the the the definition of both financial involvement and personal relationship are broader than what what is provided for by statute. And we're really my suggestion is if you do have a conflict of interest issue to consider that you that you look at the ordinance and give some thought to whether it requires that you refrain from participation in that particular matter because of your relationship with somebody who's before you. Um or because you have some type of employment or other relationship with the with the applicant or somebody that's involved. Um, as far as handling potential conflicts, um, the I just wanted to just sort of touch upon that. Um, it's really a three-step process. You know, first you should evaluate whether there's a conflict of interest or potential conflict of interest or what could be perceived to be a conflict of interest. And if if there is a matter that you think could be perceived as a conflict of interest, the next step would be to disclose that to the board, it you know, in a in a a

public meeting and um and indicate whether you feel notwithstanding that issue, you can be fair and impartial. view you can be fair and impartial in serving on that uh and acting on that application. Um and then your rules provide a process by which the board will can and will you know should take a vote to decide whether you should be recused or not based on um the nature of your relationship and the information that you've provided to the board about you know whether you can be impartial. So the board would then you know consider everything and then act by voting on whether you should should or should not serve with respect to that particular matter. In all of your examples, the board member self-reports. What if what if the board member does self report? Let's make it easy on all of us. Somebody in the audience.

Yeah.

In that case, then I think the the board should take it seriously. You know, find out what the what the concern is. Ask the the member who has been, you know, identified as having a potential conflict what their position is. ask them to provide some level of detail about about whether you know whether there is some type of interest or financial or personal relationship and um and then similar to the process that I just outlined the board could then could and should then vote on whether the board believes there's a conflict that requires If if I could too, we've we've had the opposite of sort of the opposite of that where there's a board member that's getting together with a bunch of people for Thanksgiving in a couple weeks and there's a controversial project in their neighborhood and they just don't want to be seen as part of a decision that their neighbors might like or that socially there'll be people that they're close to that are upset with them. Maybe it's approving a project that's controversial in the neighborhood. How do you navigate that if the board member is potentially saying they have a conflict because they're just uncomfortable being a part?

Yeah, I mean generally my view is that mere discomfort should not form the basis for a recusal that board members should, you know, strive to serve on any case that they feel that they can be impartial on. Um, I suppose that it could could rise to the level where somebody is so impacted by that that they feel they can't be fair or impartial. And I don't want to counsel that somebody, you know, act as a board member in a matter that they that they believe they sincerely believe they can't be impartial about because of the, you know, perception of the, you know, of the neighborhood or otherwise. Um but we you know the reason why I I I take the position that that should be a very rare event is that you know you serve an important role. We don't want everybody recusing themselves on on projects even even when they're you know simply because they're potentially controversial in the community. And if if everybody did that then um you know we wouldn't have enough people to to make a decision. So um so I think that should be a very you know recusing in that situation be should be a very rare and isolated event. So just jumping into a little bit about um sort of conduct of meetings um uh just these are just some some thoughts um for your consideration and discussion. Uh first I think it's good practice to use an opening statement at the beginning of a of a meeting that describes how you know what the procedures will be and I think the board does the board have a sort of standard

we we don't have an adopted one but okay yeah examples of what we could we could provide an example

yeah yeah and I you know I think the reason why that can be good practice is um it's better that everybody at a meeting, you know, particularly if you're taking public comment, have sort of a common understanding of what the process is. So, I think it's a good it's a good practice for the chair to provide, you know, some outline or or summary of what the procedures that, you know, why why are we here tonight and what's going to happen and, you know, what's what's the order of events going to be. So um that that is um something to um consider um using um just to ensure that everybody is on the same page about how the board is conducting itself. Um the I I my view is that um the the a board planning board um it's good practice for the board itself to vote on whether an application is complete. I anticipate that staff is probably giving you some feedback about, you know, their determination of whether an application is complete, you know, in, you know, in allowing a project to come before you. Um, but it's good practice for the board itself to, you know, be familiar with what the what what's in the application and make a decision about whether there's anything anything that needs to be supplemented or added in order for the application to be complete for for review. That doesn't mean that you know simply because you decide that an application is complete that doesn't mean that you may decide in the in the course of reviewing the standards that

you need additional information to determine whether a particular standard is met. And so your voting um on whether an application is complete doesn't preclude the board from later deciding there is some additional information we do need in order to satisfy ourselves with respect to this or that standard that you're considering. Um important to remember that the applicant generally has the burden of proof. Um and that you as the board are the decision makers. um and not the and not city staff. And [snorts] so you you as the board should be satisfied that each standard are met is met um based on your own your own review and consideration and you know generally not exclusively rely on staff for you know making that decision. um you the you know it's good board practice to expect uh civility um from all participants in a proceeding. You know hopefully you you don't run into a lot of um applications where there are people that are not being civil. Um but that can happen when a project is particularly controversial or contentious. Um and you know in you know as board members you know my recommendation is that you act you know ci you know appropriately and civily with each other um and that you also expect those who are appearing before you to do that as well. Um, you know, I generally recommend that there be some level of formality

[clears throat] in, you know, board planning board meetings generally are not run like a courtroom, but you, you know, and you don't need to run it like a courtroom, but you also should expect that people, you know, take it seriously and and and therefore, um, because it's a because it's a quasi judicial proceeding, Um it's good to to be um somewhat formal and with respect to that um you know it it's important to avoid sort of a a free-for-all as far as participation by board members and and the applicant and and others in the audience. Um so um you know I think that is a reason to to maintain a certain level of formality as far as how the process is being conducted. Um, the board should be very clear as far as the information it's received with respect to an application, making sure that that information has been distributed to the applicant and is available to those who are at the meeting. Um, and you know, an example of where this can arise is where, you know, something has been received late in the game and and it may not have been as part of the packet, but it was received prior to the meeting within the time frames that your rules provide for. You know, I I think if it was received late in the game, people may have already reviewed the packet. They may not have seen it. So, it's good practice for the board to disclose what has been received and to confirm that that information has been received by the applicant if it

didn't come from the applicant or that it's available to the public um andor that it's available to the public for those who are following the application. Sure. Just as an example, Dan, you mentioned the formality of meeting, something that happens somewhat often. We try to use the podium for the public to speak to the board. U, we try to make it clear that that person is speaking to the board and to the chair. Um, sometimes we'll get a person at the podium that's really looking right at staff and asking questions and expecting a response um from staff, but I think it's important that we remind people that they are talking to the board and staff will really only respond to that if the board or the chair asks them to respond. But it can be uncomfortable when the person thinks we're ignoring them. We really want to make sure that the questions are going through the board.

Yeah. Yeah. Good. Good point. Um, as less of a question and more of a thought, we don't we don't we discussed having an opening statement. We didn't, but that would be something that would be important to include in an opening statement to get that point across. Yeah, agreed. Um, [clears throat] you know, consistent with, you know, my emphasis on the board, you know, keeping its eye on the fact that really your decision making and deliberation should be focused on the standards that you're required to apply. um you know the the conduct of the meeting you know of the meetings to discuss an application really should be focused on that trying to limit information and argument that isn't tied to the standards and bring the discussion back to why are we here to review the these standards review the information that the parties put forward as to each of the standards and make a decision about whether the standards has been met. And if things get off topic, um it's good practice for the board to try to bring those bring the discussion back to why why the board is is meeting. So I want to talk a little bit about findings and conclusions which can be you know a tricky tricky to do. Um and first um it's clear that under main law that the board is required to prepare

findings of fact and conclusions of law in writing and adopt them um in connection with each application. That's an element of due process and um that is a reason why um approvals um by uh planning boards um can get vacated and and sent back. Um, the court relies on municip municipal boards to prepare a record and to adopt findings of fact and conclusions of law that explain the basis for their decision and and the board the the courts view that as necessary for there to be effective judicial review. And it is not uncommon for a court to say I, you know, looking at the record and the and motion that was adopted or the the action that the board took, it's not clear to us what the basis for the the board's decision was. And rather than try to recreate it ourselves, we're going to send it back and ask the board to explain itself with adequate findings, fact and conclude facts and conclusions so we can have a meaningful review of of the board's decision. So th those are reasons why it's important to for the board to to adopt findings and conclusions. Um where it gets tricky as as those of you who have been on the board I'm sure can attest to is you know it you want to have comprehensive findings of fact and

conclusions of law. It's tough to do that on the spot. Um, and so there's a few different ways that that can be done and sometimes it depends on you the specifics of the situation. Um, what makes the most sense for a particular application as far as drafting and adopting findings and conclusions. But I mean, one option is to use a fill-in-the-blank form for the board to use a fill-in- thelank form or, you know, rely upon findings that are reflected in the staff memo. Um, and I I believe that staff generally try to put together sort of some of the factual statements and and potential conclusions uh as part of their information that they share with the board. So, um, again, you shouldn't rely on those, you know, as necessarily accurate. I mean, your ability to adopt them really should be based on is this consistent with what we've heard and the information we've received. But um that that is a potential way to get to written findings and conclusions um by incorporating by reference some of the findings that the the staff has included in their memo. Um another option is to try to draft um findings and conclusions on the spot. that can be challenging to do particularly as a board uh you know a seven member board. Um but um that is an option. And then the final um alternative or general alternative would be for the board to to vote, you know,

take its votes on the application but then um postpone adoption of written a written decision um to a you know a subsequent meeting um and then have staff or you know even the you know potentially an applicant could be asked to prepare findings. probably not the ideal, but or legal counsel could be asked to to prepare findings, but if you have a particularly contentious or complicated application and you know, you've you've been going late into the evening talking about the application, it's better to get it right rather than trying to rush it. Um, so that's an alternative that's available to you in that circumstance where you're just not equipped to do comprehensive findings and conclusions um on the spot at that meeting. Defer it to a a later meeting and have a have a draft that is prepared that everybody can review and make sure they're comfortable with before you you adopt the adopt the decision. Any additional any thoughts on that, Eric or?

No, just say that we do try to incorporate those into the staff reports. We plan to continue to do that and then you can you can vary from there however the board wants to. [clears throat] Uh so are those basically those uh the parts of the memos that are contained the motion or is this something else entirely? Ours have typically been that part of the the end of the staff report that lays out the uh standards whether or not staff thinks they're met in the recommended motion.

No, actually at least from my perspective the staff has done a good job in listing down the findings of facts. I think the question has arisen uh a few occasions where should we vote on those separately from the final approval or disapproval of the application. We've kind of worked it into the language of a final vote accepting the but there is a question whether we should u take the list and approve or disapprove the whole or should there be some discussion of each of those or if there's one or two that a member has a problem with should there be a vote on maybe separate findings? Yeah. And I I think it it will depend on the circumstances, Bob. I think if there is lack of agreement on specific um findings um or conclusions, then I think it's important that there be separate votes. Um in some cases it may be possible to sort of where there are you know findings relating to a number of standards that are not contentious and everybody's in agreed in agreement with you know there could be a motion to adopt you know certain identified findings as a blanket motion and then to take separate votes on those where you know it's not clear that there's consensus that something was met. So I think by necessity it you know it needs you know you need to consider that on an individual basis

but it's very important that the board not be you know it where there is a lack of agreement on a particular finding that you know that really should be called out into a separate vote and a decision should be made about those th those standards sep separately. on those standards where there is an agreement and then ultimately there should be a vote on the overall you know on the overall project and and decision um that is separate from the votes on the individual

criteria. I think you are suggesting then two votes. It really should be a vote on the the findings and approval of those then we can move on to the the application and wrote in that as part of that vote as well but there should be a separate vote on the the findings. Yes. Yeah. And then obviously there shouldn't be a lack of consistency between those votes. So, but the the the initial votes on the specific findings would be the precursor to the vote on the total project.

You [clears throat] brought this up. So, I got to ask if we have 10 findings, 10 standards that have approved project and the board is in agreement on six of those standards. So we don't really need to discuss those other than to say does anybody have an issue with one through six? There's no disagreement standards. Then we have one board member for each of the next four standards. Then you want us to take a final vote on whether the application met. So each each of the board members holds to their decision for different reasons. No.

So yes,

the um I think a a board member could vote in favor of the overall project even if they didn't agree with the a particular stand, you know, whether a particular standard was met. Um you know I that's not ideal because it perform you know it potentially forms the basis for there wasn't nobody nobody agreed that every standard was a met or or a l you know not every there weren't there wasn't a quorum or a majority that was reflect you know that was in support of um of of every standard having been met. Um so the preference would be to ensure that there's a you know that there's a majority vote with respect to every standard having been met and a vote on the entire project having been approved. So, as long as there's a majority vote on each standard, that should carry the day as opposed to

Yeah. Yeah.

Yeah. Yeah. It should. But it can get complicated in the in the in in the in the execution implementation of it. But I but from a legal perspective, yes. If there's if a majority of the board is in fact, you know, finding that all all of the standards have been met, then that should carry the day for approval of the overall project. Any other questions on that before I I just want to touch on a couple of um freedom of access act issues quickly and then ci civility but

just one other question about conflicts of interest. Sure. Um in smaller towns this is probably there is a statute that says not supposed to sit judgment application the applicants related to I just like to say that [laughter] uh which means like your great great uncle but I think that.

Yeah. Yeah. Yeah. No, thank you for Thank you for raising that. So arcane, but it it so um go to deals and try to conduct a case.

Exactly. Um, one thing I want and I meant to touch on, um, touch on it here is there may be circumstances where you miss a meeting related to an application. Um, and then it comes to a, you know, at a later meeting it comes to a vote. Um generally you know you as a board member you should um be privy to all the information that is presented with respect to an application before voting on the final applica you know the final decision and there is a mechanism available for doing that um by reviewing the meeting video and all the information that was presented at the meeting that you missed. And the best practice if you if you find yourself in that situation would be to do that and sign an affidavit confirming that you've done it and that a affidavit um would be made part of the record. So if somebody questioned whether you you know had participated in the process to a degree where you could vote that affidavit would be useful in demonstrating that you did in fact consider all the information that was presented by reviewing the materials that you missed. Um just quickly um on um a couple of Freedom of Access Act issues um the don't don't be having substantive discussions by email or text or otherwise with other board members about

the information u that is presented to you or the merits of an application. Um if um you you know the under the freedom of access act public again public has a right to know and observe um information that is exchanged on the substance of an application by and between board members. Um so the best practice is to avoid group discussion um outside of the meeting whether that's you know verbally or by email. And then um executive session it would you know I think for planning board it's relatively rare for that you would need to go into executive session but you may you may want to go into executive session to consult with council and um you know there has to be there are specific criteria for going into executive session including having a three-fifths of the board vote to do so. and um specifically referring to the section of the statute that provides the basis for the executive session. So there's no ambiguity around that. Um finally, just a a a summary of some things that can get planning boards in trouble with the courts. Uh but I think this is just sort of a summary. um you know avoid exparte communications. Uh if you conduct independent investigations or site visits that can form the basis for appeal. If you don't make adequate findings and conclusions that could lead to a challenge. Um not um properly addressing conflicts of interest can form the basis for a

challenge. and then um deciding an application based on personal views or how you feel about a project rather than on the specific standards that apply also can can lead to to legal challenges. So, um all of those things are things that I wanted to just emphasize you should be sensitive to and be thoughtful and and the board should do its best to to avoid those issues. And then finally, um, as I mentioned, I I always talk about stability to some degree, um, in this type of proceeding. And these are just sort of some considerations for how to how to argue among yourselves without, um, um, creating dysfunction or hard feelings on the board. um you be sensitive to what your motives are. Um when you disagree with somebody's, you know, another board member's views, um acknowledge where you have common ground. Um [clears throat] but, um um demonstrate that you've you've considered um the views of others. Um, while you respectfully disagree, you may respectfully disagree with what somebody's else's position is. Um, assume the best uh motives for others, not the worst. Avoid ar, you know, suggesting that somebody's, you know, acting in bad faith or is motivated by bad motives. Um, don't get personal. Um, but be personable.

Act speak and act calmly. Don't get angry or agitated and try to find find common ground and build bridges um even as you may respectfully disagree with each other. I think that's it. apologize for the photo. I I I took this from an old uh somebody a parillegal stuck my photo onto the [laughter] thing. I don't know why my photos on here, but um but any event um if anybody else has any more questions, happy to to

I I do have one. Um, nobody else is is raising their hands. Um, if a board member has a conflict or thinks there's the potential for perception of conflict, um, any concerns with them letting staff know ahead of a meeting when the applications are out so we can brief the chair to, hey, just ask at the beginning if anybody Yeah. No, absolutely not.

Okay. Absolutely not. And and I I actually don't have um have a concern with a board member, you know, sort of asking staff for their wheal is appropriate disclosure, how how best to handle it. I think it's it's good to have that discussion. Y and even seek an opinion from you if we need.

Correct. Correct. Yeah, we we try to prep the planning board chair and vice chair ahead of the meeting so none of these things are are surprises in the meeting. Um I this reminded me what you're talking about about um if you've missed a meeting and you come in later um a long-standing practice of the council and also of the planning board that I just wanted to mention and I don't know if this has since been entered into their their rules but it has been the policy or the unofficial policy to if you miss a meeting to abstain from voting on the minutes from the meeting that you missed unless you have signed that affidavit. Do you want to speak to that at all or is that still the the common practice? Yeah, I that is the practice that is I I believe is followed by most boards and I think it's good practice that um you know if you're if you're voting on a matter uh like the minutes you know you really should be doing that from personal knowledge and you know I suppose it might be possible to vote on minutes if you've reviewed the the uh the u the meeting video Um but in the absence of that that's not before we go regarding a member who might miss the meeting um our bylaws policy to provide for associate or alterate member to sit absent. Is it better practice for that member who is absent participating in the subse meeting. video of the meeting.

Is that a better practice? I I I mean I mean I I think my preference would be that you know if an alternate is has been at every meeting um themselves and they've been you know chosen to fill in um or in the absence of another board member. Um I I I think I think I would be inclined to have that alternate continue to sit. Um re you know I think that's probably somewhat preferable to um you know a board member sort of refreshing their memory or rather educating themselves on what happened on a meeting that they missed. I mean, I think from a from a, you know, fair due process standpoint, I think either work as long as whoever is ultimately deliberating and voting on an application has, you know, preferably been to every meeting, but at the very least has um reviewed reviewed the material that they missed and is privy to it. question.

Thank you. Couple of pieces of information. Um we are meeting tomorrow night and we do have an agenda with um business that has to be decided on. Um is there anybody that would be willing to be elected as an acting chair tomorrow night? Um we can't technically elect a chair tonight for tomorrow night in the acting capacity. I'm hoping to have a sense so that we can prep um with a potential person that would serve in that role ahead of the meeting as as needed tomorrow.

That's that's good enough for us. So we can touch base about the agenda later and we are looking uh the vice chair of the planning board was the planning board's rep on the comprehensive plan committee. Um we are looking for a new rep from the planning board to serve on the comprehensive plan committee. if there's somebody interested in the board's willing to

I was under the impression that there the chair of the comp plan committee was also still trying to keep Paul as a part of the committee because it would catching someone up to speed would not be as effective. I I think that um I know that Paul we are all hopeful that Paul will continue to serve on the comp plan committee and I think that that is likely to happen but he'll probably serve in a citizen role rather than as the rep from the planning board. Um so we're just trying to backfill those seats and keep the same people. They'll just be in different positions that were identified. I mean, I think you called for two members of the

correct. I mean, I'll throw my hat in. I'd be interested in uh filling that role. Is it by by definition the vice vice chair is the representative of the committee? Just happened to correct.

Do you think we need do we want a vote from the board on that in the absence of the chair? Yes. Okay. Um if the board it looks like we have one nomination if the board could vote. one volunteer. Can we take that up tonight? I think so. I don't see a reason why we can't with an acting chair. Is there anyone else who is interested in serving on the comp committee? All in favor?

Thank you. a motion to adjurnn. So move second. Second. Thank you.