Planning Commission - Regular Meeting

Oh, I'm sorry. I can tell that person Good morning everyone. Welcome to the Rapid City Planning Commission meeting for February 5th, 2026. If any member of the audience wishes to speak to an item on the planning commission agenda today, there are speaker request forms on the table along the left wall. Please fill out the request with the agenda number of the item you wish to speak to and hand it to the staff seated over next to there. Items one through four have been placed on the consent calendar today and may be approved as a group. Action will be taken on all consent items in accordance with staff's recommendation by a single vote. Any item may be removed from the consent calendar by any planning commissioner, staff member, or audience member for separate consideration at this time. The findings of this planning commission are recommendations to the city council. The city council will make the final decision. Are there any items one through four that staff would like removed from the consent calendar for separate consideration?

No, thank you. And are there any items one through four that any planning commissioner would like removed for separate consideration? Four. All right. And any items one through three that uh any audience member would like removed for separate consideration. Chair would then entertain a motion to approve approve items one through three in accordance with staff's recommendation by move. Second.

All right. Eric Hikis made the motion to approve those items. Vince seconded that motion. Any discussion on the motion? All those in favor, please say I. I. I. Any opposed? Motion carries. Item number four. Haven pulled this item. If could I get a comment from you, Haven?

Yeah. on on item number four that what we're doing there, this is on the east side of Campbell, north of Minnesota. So, we've discussed in the past uh that that's likely to be a a commercial area there on Campbell during that stretch or through that stretch. So, this uh item then uh uh transitioned some commercial property to to industrial, and I'm just wondering if that isn't kind of contrary to our previous discussions on property in this area. Mr. Chair, Vicki,

if I might, you're referencing a reszone further north that staff did not support. It did create spot zoning. Planning Commission didn't support it either. Uh it did ultimately get approved at council. The applicant did a great job showing how he was putting a facelift on the property. Our future land use plan holds this firm as industrial. We are required to maintain industrial corridors. We do believe that in time as our city continues to grow to the south, we will transition our industrial further south. But right now on the east side of Campbell, that is a much needed industrial area. and this reszone completely aligns with the existing future land use plan.

Thank you. I think that kind of answers the the question. I I was just concerned that it was uh by doing this we were we were kind of taking a position that was contrary to to some previous discussions that we've had. So thank you Mr. Chair Vicki.

Um Haven that's actually very astute to you. We had this exact same conversation at our staff meeting. Uh knowing that this would be a mixed messaging. Uh but at the end of the day, this is what the applicant wants. Uh it's going to be an expansion of an existing use that's already there. They operate that property beautifully. So I this will help them expand and that's some infield development that will be to the advantage of the city. Uh, okay. I saw a public works light come up and then go away. That's not you, Todd. All right. Anything else on item number four?

Move approval of item number four. I'll second, no stipulations. All right. Karen made the motion to approve item four and Vince seconded that motion. Any discussion on the motion to approve? All those in favor, please say I. I.

Any opposed? Motion carries. Item number five. Good morning. So item number five is a conditional use permit request to allow on sale liquor in conjunction with an entertainment venue. Um so we are on the south side of Main Street, right in the downtown area, central business district with a future land use of downtown. So again, we're on the south side of Main Street, which is identified as a principal arterial street on the city's major street plan. So, this is the site plan the applicant has submitted. Essentially, what they're requesting is to have um recreational activities under the name Eye Smash. It's a regional um entertainment venue. Some of the things that they're going to offer axe throwing, plate smashing, and um paint throwing. So um because of the nature of these activities, we're bringing this forward um for your review because we want to make sure that there's uh some good parameters around safety for this use. So namely we have the bar area here highlighted in yellow. This is where they're going to be offering the alcohol sales. In order to um maintain safety, what they're going to be doing is wristbanding everyone that comes in. So the wristbands will indicate that you're eligible to drink. So, you've been IDed and then you'll receive a punch on your wristband for every drink that you've had so that you're limited to three drinks while you're in the facility. Additionally, they're only going to allow two drinks per hour to try and avoid intoxication. And um they're going to be storing all of their alcohol that's not in use back here, locked up safely. And um they're only going to be offering beer and wine in order to try and maintain low levels of intoxication. So this is kind of similar to the

application that you all reviewed a couple years ago for um the axe throwing facility out on disc drive. So we tried to have it similar parameters and they um submitted a really good application for this uh in keeping with that. So, um, hours of operation are going to be about noon every day until either 8:00 p.m. or 10:00 p.m. All of the staff are going to be receiving alcohol awareness training so that they can make sure that no one's intoxicated when they enter the facilities. Additionally, there's no alcohol allowed within the smash rooms themselves. And for the axe throwing portion, you're allowed to drink within the seated area, but there's no alcohol allowed within the actual throwing lanes. So staff is ultimately recommending approval of this application with the stipulations noted in the report. I'll stand for any questions and I don't believe the applicant is in the room though.

Thank you. Uh Eric Hikis. Thank you, Mr. Chair. Will me be served? I'm thinking if I was going to throw an axe, I would want a beard and ponytail and a couple of drops of mead. I don't believe so. I believe it's just beer and wine. That's a good question, Mr. Chair. Yeah, Vicki. So, uh, you know, for some of us, we look at this, so we think, yikes. Uh, it's a unique use, but it there's it's trending across the nation. I just wanted to point out that u the only reason that you're seeing it is because of the on sale liquor component. Otherwise, it's just a building permit.

Hayen, I guess my thank you. I guess my comment would be, you know, I I think the restrictions that they listed are are good. However, uh I see a a real difficulty in in in uh ensuring that those limitations are enforced by the applicant. And I guess I'm not sure how you how you answer that, but I guess it's just an observation that that uh uh if the city is going to do something to try to make sure that uh those limitations are in effect, uh that would that would create a a pretty heavy burden on the city.

Mr. Chair, Vicki,

yeah, we certainly won't be policing the interior use of a commercial building. However, if the applicants in the audience, perhaps they could give some additional information on how they're going to ensure that the parameters are being enforced throughout the open hours. I I don't believe that they are, but um like I said, they're going to do the punching on the wristband, so it's very easy to see how many drinks an individual has had. They're going to be keeping track of the um number of drinks you've had per hour as well. So, two drinks per hour, it's only beer and wine. Should be fairly fairly easy to track, I believe. And everyone's going to be receiving training under that as well.

Mr. Chair, yeah, I know that when we did review the axe throwing, the applicant was in the audience and you guys grilled him pretty darn hard. I'm sorry to interrupt. Did we were there any issues reported during the period where that was in operation? I I think some of us had family members that attended it that they had it some issues.

Um uh but I don't think it's because of the operators. It's just because of some out of control patrons. Um and I don't think intoxication was the out of control part of it. Uh but at the end of the day um I think that they have submitted an operational plan with great intent. Uh I again we looked at the trends of this throughout the nation and it's growing. So it was only a matter of time before it came to Rapid City. Uh I think this is known to be a great stress reliever. It's an alternate entertainment venue for a lot of our young adults. Uh and so if operated correctly and remember they will have to have insurance. So if someone gets hurt um it would be on them to work with their customer to cover whatever that injury would be. I'm jumping ahead of a couple people here, but one thing that I didn't see on this in the operation plan, does it describe how um I don't see any common seating, I guess. So, is there is this intended to be you come in and you're going to one of the rooms to do an activity or is it intended to be hey come on in and if you decide to do one of these activities you can do an activity but if not you're you're in the event room or something like that.

So more so the first option the alcohol use is only ancillary to the recreation of the facility. So you certainly aren't expected to drink necessarily. It's not really a bar. It's more so the entertainment venue and they'll offer a couple drinks if you're interested. Gotcha. Okay, Mr. Chair, Jessica just pointed out a a valuable thing, too. Um, this is a company. They have a chain of these so they've got experience in operating them and I think that makes a difference too.

Mike Quasnney. Thank you, Mr. Chair. Uh, one of the comments are the it's going to be run similar to the escape rooms then is basically what it is. Uh, and that was the question that I have. I'm a little concerned that you can mix alcohol and an axe. It just seems like it it just I I I struggle with that a little bit cuz um, and you kind of answered the question that I was going to ask. We have a place that had this and we've done this. Um, and it sounds like there's not alcohol that has caused problems with it to this point. So, I guess we have a history to kind of show that this is not a problem, but it's still and I remember when we talked before it was concerning. So Vince,

oh thank you chair. Um so ju just to be fair somewhat because and and referring to what Vicki was pointing out is that I mean I have attended a couple of Renfairs uh these these tend to be a popular activity and they tend to to bring in more entertainment and other options to venues like this. So, uh, they I don't know if they served me, but if you wanted it, I'm sure they'd give it to you. The, uh, but and and the so far based on the previous experience with a with with a similar operation, I mean, we we we did grill it pretty hard and they did maintain it. So, I know the applicant's not here, but I wanted to at least uh point out that what Vicki was pointing out that this could be a growing opportunity. So, thank you,

Mr. Chair. Vicki Morgan did a great job. Um, she pulled the previous conditional use permit for the axe throwing facility and ensured that uh that this operational plan met it. And I think that uh in some instances because of their u additional training that they're giving staff that they've exceeded it. So, uh, just we we did warn them that this is something that you would have some angst about and that we wanted strict parameters on the operation. Eric Kaikus.

Thank you, Mr. Chair. Uh, move approval of conditional use uh with stipulations. I'll throw I'll throw an axe up on this one. All right. Eric made the motion to approve with stipulations. Alicia seconded that motion. Any discussion on the motion to approve? All those in favor, please say I. I. I. Any opposed?

All right. Motion carries. Item number six. All right. Good morning, chair, commission. Item 25 UR038 is a request for a major amendment to a conditional use permit to allow an electronic message center sign. This is a 47 acre property um known as 685 Lacrosse Street. It is located at the southwest corner of Lacrosse and East Monroe Street. And uh currently there is a multi-tenant commercial building located here um that houses Little Caesar's uh restaurant as well as Caesar's Spirits liquor store. And a previous major amendment for this property was approved that included a stipulation that electronic or LED signage would require a major amendment in the future. And so that's why um they're here for this request today. This property is located in the general commercial zoning district and the Rapid City future land use map identifies the property as appropriate for mixeduse commercial uses. This property is um located on the corner of Lacrosse which is a principal arterial street on the city's major street plan and um East Monroe Street which is a local street. And this is a diagram of the proposed signage. Um, so currently there is an existing pole sign located in this right here in this location on the property

and the applicant is proposing to remove that signage from the pole and install new signage on it. And that's what you're seeing in this graphic. Um the electronic message center sign is only the middle sign that's shown on this poll and it will be approximately 53 square feet in size and in compliance with the sign code regulations of the municipal code. Um it is important to point out that only on premise uh messaging will be allowed on this onremise ground sign. This is the site plan that was submitted that shows that sign location there um on the corner of Lacrosse and East Monroe. And this is a picture of the property. Now um there are currently two pole signs on the property and um an off-remise billboard as well as um a number of wall signs that are located on the building itself. The two pole signs were construct were permitted and constructed in 1993 uh the year that the building was also constructed. This is a closer picture of that pole sign as it is now. So um this signage would be removed from the pole sign and the new signage that you saw in the earlier slide would be installed. The sign code regulations only allow for a maximum of 60 square feet of of electronic message center signage per lot. And so in order to comply with that, the applicant um is planning on removing the existing electronic message center sign that is on that southern pole sign as shown here. and then they would just share the new

electronic message center sign that would be installed. This is a picture looking north at the property as you're driving along Lacrosse Street. And then again looking south along Lacrosse Street, this is the um autoervicing business uh located next door to the south and looking across Lacrosse at the uh mixeduse commercial businesses there as well as the health center that is located next um across East Monroe to the north and the residential properties. is located to the west and a picture of the required signage for today's request. So, I'm going to flip back so you can get another look at that proposed new signage. There we go. Um and so with that, uh in reviewing this request, this proposed electronic message center sign does meet the sign code requirements in our municipal code. As required by the sign code, the sign will be required to be equipped with automatic dimming technology and the light admitted from the sign must be of an intensity that its brightness will not adversely impact surrounding properties um or the safe vision for pedestrian or motorists that are passing. It appears that this sign will have minimal impacts to surrounding properties and uh it is in alignment with the goals, policies, and actions of the comprehensive plan. Therefore, staff is re recommending approval of this major amendment to a conditional use permit to allow this electronic message center sign uh with the stipulations listed in the project report.

And we do have the applicant here with us today if you have any questions for him. And with that, I'll stand for any questions myself. Thank you. Um, I looked at the stipulations and it didn't say anything specifically about removing that other message center. Does that need to be a stipulation or is it just part of the permitting one means they can't have the other? Absolutely. Kurt Bea will not issue that sign permit if they don't remove it. Okay. And he is our signed code officer for the city.

Haven. Thank you. Um maybe I got a little confused as you were going through this. Uh there was another uh photo other than the one you showed here. Which sign is being removed? Yes. Let let me clarify that. So the sign that you see here, the Caesar's Plaza sign that's just under resting kind of under that billboard there, that is the sign that will be modified. the pole that is a part of the sign will remain and they will just take off the signs that are on that pole and put on those three new signs onto the pole.

Yes. And the pole being Yes. as it here. Now there there's another one and I'm I'm guessing that that's on an adjacent property that uh

are you referring to this sign right here? So, this is located on the same property and it is a second poll sign that they because they have two currently and will continue to have two. But what they will be doing is just removing that electronic message center sign from this um from this poll sign because they can't have both and still meet the maximum square footage in the sign code. So then my understanding is that the the one that the photo that you have up there, the Little Caesar's Hot and Ready will stay there. Yes.

And the bottom part is removed and that will go over on the white pole in the background here. You are correct. the upper portion of this sign, the hot and ready portion with the graphic will remain. And then be, you know, they're doing that so that they're able to put this new electronic message center sign on the other pole sign. And is the electronic message is it does it change? Uh

so the sign code um requires that the electronic message center sign may incorporate graphic animated or scrolling messages but may not incorporate it like a full motion video graphic. Mr. Chair Vicki,

the main reason why folks want these electronic readerboard signs is because they want changing messaging. Um, and so there are strict protocol on what that needs to what it can include and how it can be displayed. I also wanted to point out real quick that um because this property is abudded by so much right ofway, it's allowed a significant amount of signage. Our sign code says that you take the linear foot feet of street that a property abuts, take it times two, and that's the amount of square footage that you can have for ground signs or pull signs. In addition, you can have that same square footage as a wall sign. Uh, and while some of us thinks that's excessive, I just remind you that there was a large committee that met for almost three years to create the sign code that we operate from today.

And as an onremise sign, then they're limited to advertising uh for that property. Is that correct? You are correct. It will be limited to just the messaging for the onremise businesses on that on that lot. All right, Mike Quney. Thank you, Mr. Chair. Um, so when they take down the reader board on that other sign, are they putting something else in place? No, it that will just simply be removed. Okay. So, there will be less signage

in reality. Yes, you are correct. Um, at the end of the day, uh, there will be 26 square feet less um, of the signage for the as as Vicki had pointed out in that category. So, for the ground the on-remise ground signage um, it it was 260 square ft and now it will be 234 square ft. And to Vickiy's point, due to that large amount of u frontage, they actually have a total allowance of ground signage of 586. So they are well under their maximum um of the ground signage for this property.

Yep. The other concern that I had and it won't be a problem because the sign is facing uh north and south. uh if it was facing east and west, it would be a problem for the houses on the other side. So, it kind of takes care of that problem. Um and there is no there's no way that they can change that where they if they wanted to change it east and west, they couldn't do it. Mr. Chair, I think it defeats the purpose of messaging. Um but it would require an additional permit,

right? And I guess that would be the question. I I I'm just thinking for the future because when we change that sign and it's facing those homes, it's a different proposal than facing the the business. So, okay. No, I don't have a problem. All right. Anything else from the commission on this one? Make a motion to approve. All right. Vince made the motion with the six stipulations. Stipulations. All right. Is there a second to that? Pat seconded that motion. Any discussion on the motion to approve? All those in favor, please say I.

I. Any opposed? Motion carries. All right, that takes us to the end of the regular agenda. Staff items. We've got a presentation from Kinsley.

Yes. Oh, okay. It's working. There we go. Okay. Kinsley Gro, assistant city attorney from the city attorney's office. I gave this presentation about four years ago. It's amazing that it's been that long, but we have most of the same members. So, that's really nice. You've a lot of you have seen a presentation that's pretty similar to this one, but there have been some updates. There was actually a South Dakota Supreme Court case that came out. I want to say a couple weeks after I gave the presentation last time. So there there have been some updates on conflicts of interest. Okay. So if you learn anything today, if you want to take anything home, you know, tattoo it on your arm, whatever, um this would be it. It would be what a conflict of interest is. And I like to say that it's when your official position plus your personal interests accidentally schedule a meeting. Okay. So there's a test of your actual bias or direct pecuniary interest or unreasonable serious risk of bias. That is a conflict of interest. There are a couple different ways though legally where we get to that position

and one route is through due process protections in the constitution and the other is through state statutes. But we basically get to the same place. Now I'll go through this pretty quickly. I just want to have this information out there in case anybody's curious about the background as to conflicts of interest and how legally we get there. There are protections in both the US Constitution and the South Dakota Constitution for not being deprived of the due process of law. big picture for you guys. Just the the general way to say it, a fair trial and a fair tribunal. You guys are basically the judges up there. When does due process apply? Well, due process applies to quasi judicial proceedings. So, we've kind of we've talked in the past about the difference between something that's quasi judicial and something that's actually legislative in nature. And quasi judicial is not making the law, but rather taking the law and then the facts and looking at how the facts fit in with the law. Typical elements This public body you have the power of the state city. This body is reviewing facts and applying them to the ordinances the rapid city municipal code that we have. Then you make a decision. That's what quasi judicial is. However, it technically is case-based

and fact-based. So we look at things um based upon the situation to truly determine whether it's quasi judicial if you're acting in that way. Okay. So an example of what's quasi judicial is a conditional use permit. You're taking um you know there's a set of standards and you're basically taking the situation that the applicant presents and you're applying that situation to the standards. A reszone though on the other hand is not quasi quasi judicial that is actually legislative in nature but we'll talk about how that's protected under a state statute. Vacation of rightaway is another example of how you have something that's not quasi judicial. So what does due process require? Well, staff has to provide notice. There's a right for applicants to come in and basically share their side of the story. Uh they have a right to know people who are coming in and claiming something contrary to their position. And so we want all the facts to be heard. The person also has the right to be heard before the body. And the key thing for conflict of interest is that right to that impartial decision maker and the right to the fair decision. So when it comes to being impartial, how do you decide whether you are impartial or not? Well, it's somebody who is disinterested in the outcome and one who is free from, and we're going back to that test, somebody who is

free from the actual bias or that predisposition in the outcome. You're fair and you're impartial. And one one thing I think of is if you're sitting in front of a judge, you don't want to have the judge have the issue predetermined um in their mind before you even step into a courtroom to present anything to the judge. You want them to be impartial. So you can come in and you can speak your side of things and see if they agree with you. So here's that rule again and we'll go through actual bias the direct pecuniary interest and this is where the test has changed a bit because it used to be four different categories and it seems like the Supreme Court has morphed this into more of two categories and one of them has um two elements So more like three categories than four. It was this case from 2022 where the Supreme Court talked about it. And um one one thing to note is this concept of well what happens if somebody isn't recused that so they have a conflict of interest and they don't recuse themselves or they're not voted off of it. Well, there's the potential for a judge to deal with it and basically say, well, that one vote will be disregarded and if it doesn't taint the rest of the vote, then the decision stands. But there's also the possibility that a

court could say that one conflict of interest caused uh tainting of the whole entire decision and so go back and redo it. So actual bias. Okay. So the, you know, the actual bias when you come in with that bias on that particular matter and you just could never be persuaded. So if you could never vote yes on a certain matter simply because it dealt with X, then you have an actual bias. An example would be there's a conditional use permit for a jail. Let's say you don't believe that jails are right. You you think that there should not be any jails, that that's just the incorrect way to to uh deal with criminal justice issues. So, you could never support putting a jail anywhere simply because you have you believe it's wrong. Then you have an actual bias. This is a conflict of interest. You should recuse yourself on that application for a conditional use permit for the jail. Now for the direct pecuniary interest, the money. The South Dakota Supreme Court has stated that a quasi judicial decision maker should recuse himself or herself when he or she has a direct personal substantial pecuniary interest in a case. And a good way to look at it would be when an official votes on a matter benefiting

the official's own property or affording a direct financial gain. So direct, personal, substantial and pecuniary, very monetary based obviously. So, next is the unreasonable serious risk of bias. And that one, this is where the South Dakota Supreme Court has kind of changed things a bit, it seems, from that 2022 case. So this one is um they they've said that there are situations for judges where a judge needs to look even more impartial and those standards are um actually end up being a little bit different from um a quasi judicial proceeding. So they've actually kind of loosened up the standard for quasi judicial proceedings a bit. But so this is the standard. Now in rare instances there may be extreme facts that create a situation where basically it just looks bad. You have that serious objective risk of actual bias and recusal would be required. And I just I can't help but say that it's basically the stink test. Does this does this really smell to the public as if there's, you know, something going on here? Um, and you could call it to the the journal test. What would what would these facts look like if they were on the front page of the journal? If they don't look good at first glance, then I think there's um a big question of, you know, that's one where we'd

probably say, "Yeah, that's probably a conflict. I' I'd recuse myself kind of situation." Okay. So, that was the discussion on due process. We also have a state statute that deals with conflict of interest and it protects more of the legislative type proceedings, the reasons, vacation a right away, but it's applicable to any proceeding, not just a quasi judicial one. And I like to break this one up into different categories for this statute. And number one deals with the honor system. So the first part of the statute where you get to decide that's the honor system. Do you have that conflict of interest? And then if you jump down to subsection two, that's the section where other people have the opportunity to keep you honest. And that's not necessarily something that we have in due process. This is something where it's a statutory protection because in my mind we don't want to have to take this to court. So it just gives public bodies that opportunity to just keep everybody honest. And then the third situation um is basically where the judge decides. So that's the that's the remedy. the remedy is to invalidate that official's vote. So that's the test again. And there was one case in 2023 that I thought was pretty interesting.

It's this case out of wall and it had a good um idea of what a court can and can't do. And it the case made it clear that the court can't just come and tell this body that you have to disqualify a member for what is a perceived conflict of interest. So the court's not going to ever force you to do that. But I just thought that was um that was an interesting thing that they pointed out the limits, the judicial limits in this equation. We do have a city conflict of interest policy. It's in a resolution and it basically um I'd say, you know, if you're going to pay attention to anything, it would be due process and the state law, but this would in many ways parrot those things. It's designed to parrot what's already required in state law and through due process protections. You also have information about a conflict of interest in the planning commission bylaws as well if you're ever wanting to look at those. Sometimes these documents can can help a little when you're thinking about it, give you some additional language. So that's conflict of interest. And maybe I'll ask right now, does anyone have any questions while we're on that subject? Because we're going to go to exparte communications. Yep. Eric,

thank you. Thank you. Um, can you go to the state statute? Sure. Slide. There's one sentence in there. Tried to read it several times and it seems like a runon. Maybe you could read it to us and make it. We'll see. Um, let's see. That's not it. Back a couple more maybe. Okay. Because this is the this is the main one. I don't know that I have back a couple more. I'm sorry. Is it because this is the state statute that talks about it. Were you thinking of something different? Well, never mind. Okay. Sorry. We can go through it at the end. I think that was

okay. Maybe that helped. Okay. Exparte communications. I'm sorry, Vince. Oh, Vince. I was just going to ask you a question too regarding the cuniary responsibility. Uh Mhm. I mean, how is that determined? Obviously, if you own stocks or bonds in a in a and that I mean, you don't have a direct relationship with with somebody then at that point.

Yeah. Yeah. if it's stocks or bonds. I mean, if maybe if it was something where the um the company came in and they're proposing building a big facility here and they've told shareholders, oh yeah, this will really if we build this new facility, this is going to increase what you're going to make on this or we're going to give out a dividend or something like that. I that would be a direct pecuniary interest as long as you you know that you have prior knowledge to that. Yeah. But I mean, if they're coming in and they're not even talking to you about it, but you have some, you know, I mean, your your your stocks are are not monitored by you directly.

Yep. Exactly. It's it's it's a situation where you really know that you stand to gain something because it's affecting how you're going to decide whatever this is. Not that I have a lot of stocks or bonds because I know Yeah, that's a good question. We do have a responsibility if we know of others. Was that part of the uh what what you were pointing out regarding uh responsibility to if other members know of another member that's voting should be uh you know recusing themselves then we need to bring that up. Is that correct? Yeah. Yeah. If if there is a situation where you knew about others and it caused you to pause and question that that is something you could bring that to a vote and

say you know this is this is the information I've gotten you know certainly let the person explain right what um they feel about the situation but yeah that's something that this body could bring to a vote if if you wanted to and thank you.

Yep. exparte communications. Okay. So, this is the situation where somebody is going to talk to you before the planning commission zoning board of adjustment hearing about that item and the the danger is that they're undermining the applicant's due process rights because they're talking to you about it outside of the meeting. and and sometimes it could also be you know there's an issue with the you know the applicant themselves sharing too much but we want to have everyone have the same information to make the decision on. So um I covered that you know part of the concern is that appearance of fairness um actual fairness and impartiality of the decision maker and you want to certainly have that complete discussion at the public hearing so that the public can see why you're making that decision rather than it being a decision made behind closed doors. So, here are the state laws dealing with exparte communications. This first one talks about an um elected or appointed officer being able to rely on their experience and background in something that's coming in front of the commission.

So, it's it's a nice protection. It's a nice statement about the fact that yeah, you can you don't have to come into this blind. Obviously, you have you might have lots of experience on X, Y, or Z, and that's that's actually a nice thing to have. So, it's telling you that's not going to be an issue. And this is where we really get into the meat of um the issue. So if you have a quasi judicial matter, which we've already talked about, what is quasi judicial? And if an officer relies upon any evidence not produced at the public hearing, the officer shall disclose the evidence publicly and include the information in the public record to afford all opportunity or all parties an opportunity to respond or participate. Failure to disclose might be grounds for disqualification of that person's vote. Um, so main issue is if it's something that you don't end up hearing at that at the public hearing, it just never gets presented. A good time would just be towards towards the end and just say, "Okay, this information didn't come up, but this is the information that I got from from somebody about this. I want to make sure it gets disclosed. And it's it's been great to hear you guys doing that. Um if ever you've had a situation pop up like that. I've heard um members of the planning commission do that. Okay. So this statute talks about the contact.

If somebody is going to make contact with you, that contact alone does not require you to recuse yourself from serving on those quasi judicial matters. But it's really only by the showing of clear and convincing evidence that you know the authority statements or actions regarding an issue or a party involved demonstrates that prejudice or an unacceptable risk of bias that that's when you could potentially be disqualified. So there's, you know, there's a good amount of outs in these statutes that say you, it's really when things jump to that prejudice or that unacceptable risk when it's just not disclosed that we've got an issue. Any questions? Haven.

Yeah. The statute that you have in front of us, the 6121, um doesn't talk about uh let's see, it say may receive input from the public directly or indirectly. I'm confused then at how that would apply to when the person contacts me, for example, about an application. This seems to allow that. But I guess that contact I would need to disclose that.

Yep. If it's something that never comes up at the public meeting, then yes, that would definitely be something to disclose. If they're giving you information that was not did not come out in the public meeting. So yeah, that that's I guess one of the things that would happen most often in our situation is, you know, somebody contacts us and tells about it and I suppose it may not be the applicant either. It could be somebody that has some knowledge of the situation.

Yeah, absolutely. And that's where I've got a slide on this um talking about, you know, when you're handling those communications, you know, a good thing could be to stop the person and say, "Hey, do you just want to come to the meeting and share this information so everybody can get this information at the same time?" That's a way to to handle it. You can also tell them if you keep talking, I might have to recuse myself and that's going to prevent me from voting for you or voting for the other side just to say we want to get the information to everyone. But some people just won't stop it. Or, you know, some people just send those emails and UCM because there's not really a way not to read it. You want to see what's going on. And so that's when you can just bring in the email and say, "I was sent this email. I I didn't ask for it, but I was sent this email. This is the information and members of staff can present that to um to all the members of the planning commission or zoning board.

In another situation, I guess maybe an example would be the the sign on lacrosse that we were dealing with this morning. Uh so when we get the agenda uh I go up there and wander around on the property and u before the meeting and look at the signs and so that there's nothing wrong with that or how yeah with as far as us doing some kind of an u investigation uh ourselves before the meeting. Yeah, you can you you can wander around a property. You can go to the site and look at it. There's always an opportunity where if there's something that's really outstanding, you'd probably want to share it with planning commission. If it's not something that's shared during the hearing, so you see something that's very odd and it's going to influence your decision, certainly share that with everyone else. But you can go look. The risk is more when you're talking to someone and they're going to share information that nobody else gets and it's going to influence the way you vote because they say X, Y, or Z. So, it's really more of when you're communicating with someone. If you go to a site visit and are looking at things, if if for some reason you come into contact with the applicant and they start sharing things with you about, you know, x, y, or z concerns or good things or bad things.

Uh, Kinsley, we've got a couple other lights up here. Do you want to pause, take questions, or do you want to keep Okay. All right, Pat Rosund,

thank you. Uh, to me it's it's it's almost impossible for us to go out on our own to get information from the way it sounds and and to me that to me is really difficult because you can't get all information sitting here a lot of times. You got to go out and speak to people and get their idea what their plans are and this if that happens we got to come over here and say I've talked to this person da da da da da and I really feel like it kind of limits our scope to find out information about a situation whether it be this type of situation or like with historic preservation commission trying to find out information on their ideas. Yet we have to almost sit here without any information unless it's presented to us with somebody at the DAS. And that to me is rather confusing.

Yeah. I'll I'll let Vicky chime in.

So I think Pat, you're unique. Uh there is a you at one time was a city council member. You had constituents. You listen to your constituents. You were elected. You are now appointed. You don't have constituents. We are not ward specific to how we choose you to be on the planning commission. So that is a different hat that you wear and um we when someone calls us and asks us for the contact information for planning commission, we do not provide it. They cannot reach out to you directly. Whether it's someone in favor or against an application coming forward or the applicant themselves on council, we understand that your constituents that voted for you, if an item is in their ward, they may be contacted. And council does a pretty good job speaking at the council meeting saying 12 people got a hold of me and this was their concern. That's not the situation here.

Yeah. Thank you. I just it's basic difference between elected and appointed for the most part. Y Okay. Thank you. Appreciate it.

You can you can kind of think of yourselves as being members of a jury. So you want to you'd want to come in with a clean slate. And this is what happens in jury deliberations. So the attorneys ask everyone, okay, do you have this actual bias? They'll ask about those kind of things ahead of time. They'll ask about those conflicts of interest ahead of times and those people should not be serving as jurors. And so, you know, it's it's similar in that you're, you know, we expect people to come in with that impartiality. And yeah, it is a little bit different when it's a city council member and you're constantly taking concerns. But I think the key the key no matter what is that is this encouragement of getting the information out at the meeting. So, you know, having someone put their concerns in writing and send those to staff. If you want to ask questions beforehand to staff because you're worried about something, certainly you can say, "Can you explore this more and get us more information because I don't, you know, this is something I'm concerned about." So, we want you to have the most information that you can have. You know, the information that you need to make that decision. So, you know, it's don't don't be afraid about conflicts of interest because, oh, might I come into contact with someone there. There are opportunities to disclose it. So, it's one of the key things is disclosing it at the meeting and encouraging people to come to the meeting to get that information out.

All right, Vince. Well, I just wanted to to offer this example if I could because uh it it was regarding a a billboard or a sign, an electronic sign, and the information came out to the public. Uh but I happen to live near there. So, I happened to have and actually Mike brought it up first where he pointed out how close an apartment complex was now to this sign that they wanted to relocate or rebuild or change. And that apartment complex wasn't there when that sign went up. the first time. So I mean that was just something we brought up for that particular issue. Yeah. So

yeah and that's that's an excellent thing to to bring up to have in that discussion. So that knowledge is good. It's good to bring that in and share that with everyone. So that's definitely something that we want you to do to help you make that decision. It's just a matter of everyone on planning commission being able to have that same knowledge and not just have information that that others don't have. Uh if I might, Mr. Chair. Okay.

Uh one of the things that uh Kinsley pointed out four years ago, um exparte communication applies to conversations with staff as well. So years ago, some of you or previous members that sat on planning commission would call the planner that wrote the report and say, "Help me understand this. I've got issues with A, B, and C." And if there's that discussion, then it has to be disclosed in this meeting. And for a while, um, we were doing that and what happened is all of you stopped calling us. And then when you had that question, you asked it in the meeting and then all of you heard the answer. So, it it's working the way it should.

Thanks for bringing that up, Vicki. That's a good one. Okay. Um, oh, yeah, these are some other ways to, you know, to handle those exparte communications. Uh, okay. Here was that. Here's the information on site visits. So this is where it's the we don't recommend that you make a site visit where you're calling the applicant and asking them to come on the property and look at it because of that risk of exparte communication and the bias. But this is always there's always an option where planning commission could go to a site if need be. I don't know that it's ever happened but um that that could be an option. this. And then finally, it's the, you know, if you're going to drive by and look at it, just I would encourage you not to talk to people because of that risk of the exparte communication. But if you do, if you happen to do it, just disclose it in the meeting and that will afford all opportunities that or all parties the opportunity to respond. That's basically it. if anyone has any questions.

The last field trip I remember as a planning commission was the Fifth Street Walmart. We had a special meeting out on the base like it was just graded at that point and staked because we had them come in and stake the footprint of the of the property and held a planning commission meeting on site. Yep. That was the second one that I'd ever done. Okay. Thank you, Kinsley. Uh, Eric Hikus.

Thank you, counselor. That was very helpful. Um, kind of a followup on to Pat's comment or question. So, and not to make trouble, but does the council then have the same responsibility that we do if we've passed this on to them for approval? Does do they understand the responsibility we have? And then I mean is that I guess these are kind of murky waters, but do they understand the burden of care that we're under? And then are they under that same burden of care if if if we send something to them for approval or if it's appealed?

So they are under these constraints. So they have to deal with the due process protections and the state law protections for for people. But um like we were talking about it's a little bit there's a little more leeway when we're thinking about things that are more legislative in nature and they obviously when you have to make legislative decisions uh yeah you do sometimes have to just reach out and think of more of a comprehensive hole. So um they're they're given a little more leeway when we think about that.

Okay. But the the thing about them is they always have to deal with contracts and that's even that's a bit tougher when you're thinking about all the different contracts that go in front of city council members and some of them just have to constantly recuse them on certain recuse themselves on certain things. So do do you mind if we go through the PowerPoint and look at that one item? Absolutely. And then while while we're looking

you know the assumption that we are all under up here is that what's being presented to us is fact. Correct. So I mean if there's any concern of whether the what's being presented is fact, we should disclose that. Is that correct? Or like if somebody's sitting there lying to us as you know clearly as day, we should can we can we say that doesn't sound accurate, right? You know or

Yeah. I mean that's absolutely a good thing. So if you were to get that information and bring it out at the meeting, I think it's fair to say this is who I heard it from. I can't vouch for this being a fact by any means, but this is the information I got. Okay, we will go through and you can look and tell me.

Sorry. Sorry. You're okay. You're So, you're looking for a specific statute? No, you'd mentioned it was.

I wish I would have stopped when we were talking like this. No. Here we are getting closer. Okay. And then this is this was back to the the statute on the conflict of interest. Should I keep going or Yeah, keep going. Okay. We missed it, I think.

All right. No, we'll catch it another time. It's just I remember reading this the paragraph and it was a long run-on sentence and I was having trouble just with the English of it and the and the verb and the noun action and like there was so much going on there that like okay what are we actually doing here? You know what I mean? So yes. Oh the the troubles with statutory sentences, you know what I mean? Like what is the what is it stating really? So okay, thanks. Sorry about that. That's there's a whole profession devoted to dealing with that. Alicia.

Uh, thank you. I think Eric inspired me to uh ask a different potentially murky question. I I don't know if I have the language right, but kind of back to the impartial decision- making um and you know, you gave different examples. So, one of the very explicit direct financial benefit and then that other side of um impartial decision like I don't think jail should exist so I should recuse myself because there's no way that I can

hear the other side or you know even think about this rationally. Um or the sign example like um well I guess with the sign example say that the sign is in my backyard and even though it we're we're looking at you know does it meet code whatever um I'm like I would never want to sign there so I'm not going to benefit financially. It's not my sign company. Um so I guess some of the yeah questioning just where those two kind of come together or something about a school like my child goes to this school. Not that I could never be impartial about it. Um, but there might be like, you know, that you'd never want liquor sold within a mile of that school. So, I don't know. I guess how do you, you know, think about that with either city council people or or with us? It just seems like some of that's pretty tricky and that the direct financial gain is super clear, but there's a lot of ways that people can be indirectly benefiting even if it's not directly financial. Mhm. I I think those ones often times fall under that unreasonable serious risk of bias.

Okay. Where it's the if the public's going to look at it and they're going to say, "Okay, this is a sign that's in your backyard. Why would you ever want this then?" Yeah. Yeah. That's that's definitely one where it could fit under that category. Okay. All right. Anything else for Kinsley?

Yes. Thank you for the presentation. Always good to get a reminder. Um, other items. I've got one. I'll try to make it quick. Um, we had a a tax increment district discussed at the last meeting and I just want to point out I didn't take part in it. Um, but the discussion was way different from the previous ones we've heard. and that continued at council. It didn't even make it out of committee. Um, and some comments from council members seem that to say that it's the tax increment districts are going to be looked at differently. And I think that's post the election that we had in January. And I guess I would just, this is a personal appeal to council. I think if the review of tax increment districts is going to be different in the future, we need to make that clear to applicants because what's on the books is the same thing that was on the books last year. And last year, we and council approved a tax increment district downtown that provided a grant for private improvements um through an economic development. uh and the most recent one didn't uh pass muster. So I I don't want to get into discussion about the current tiff that that is still in the process, but just make that suggestion to council if they're rethinking how tiffs are going to be looked at. They need to put it in writing, put it on the books.

If I might, Mr. chair. Okay.

Um we did move uh TIFF reviews to the finance department. Um and that took place well over a year ago. Uh with that, the finance director did bring forward a revised TIFF policy. And so, uh, I think, uh, that independent of the vote on January 20th, the challenge that's been posed by, uh, the city council is to ensure that the TIFF policy is getting followed. And I believe that uh the finance staff when they're meeting with the potential applicant are making it extremely clear that uh if that project checks enough boxes. Um so I appreciate that messaging um it's something that I think they're doing fairly well right now. Well, I just I look at it in that that policy that change the most recent change to tiff policy went into effect March of last year. The stockman's tiff was made to June of last year. So, after the regulations were changed and it was certainly looked at differently than the most recent downtown tiff that um came through. It just seems to be a change in the winds and if we need to be fair to applicants and and make sure that they know that the winds have changed and I I feel that the way to do that is with the regulations on the books, not by telling them that the winds have changed verbally. But that's just me.

Well, I'll second that. Anything else from the commission today? A motion to adjurnn. Maybe motion to adjurnn. All right. Thanks, Vince. Is there a second? Second. Karen seconded it. All those in favor, please say I. I. I.