Is the TMAPC a quasi-judicial body?

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In the course of the ongoing effort by Tulsa County Commissioner Karen Keith to remove Tulsa Metropolitan Area Planning Commission (TMAPC) member Elizabeth Wright, I've heard and read the TMAPC described as a "quasi-judicial body." Accordingly, these same sources claim that TMAPC members are like "referees," that they are to remain impartial throughout the process, and that they should only inquire about and consider very narrow criteria in deciding zoning applications.

In the specific case of Liz Wright, this perspective says that she is wrong to ask questions about issues like stormwater runoff (technical matters beyond the TMAPC's purview, it's said), was wrong to "counsel" the Holland Lakes homeowners about arguing their case to the City Council (regarding a zoning application that the TMAPC had already heard; Wright says she presented standard TMAPC material on how to be effective presenting your case), and was wrong to vote on a zoning application involving a parcel adjoining the neighborhood where she served as neighborhood association president (even though the neighborhood association didn't support or oppose the application and thus had no interest in its approval or rejection).

Apart from the specifics of Liz Wright's situation, I'm concerned that a false understanding of the TMAPC's function and nature hamstrings its ability to engage in actual planning and reduces the TMAPC to little more than scorekeepers for the zoning process. This idea of the TMAPC as quasi-judicial referees in all respects doesn't square with state statutes and city ordinances that define the TMAPC's composition and roles, nor does it fit what I've heard and observed in the eighteen years I've observed the TMAPC's proceedings.

Let's look at the law. The TMAPC is one of at least eight types of planning commissions enabled by Oklahoma statute (that I've found so far), each with its own section of either Title 11 (Cities and Towns) or Title 19 (Counties):

(1) Municipal planning commissions (Title 11, Article XLV)

(2) Regional planning commissions (Title 11, Article XLVI) -- covering three miles around the city limits

(3) City planning commissions for cities over 200,000 (Title 11, Article XLVII)

(4) County planning commissions (Title 19, Section 865.1 et seq.)

(5) Joint city-county metropolitan area planning commissions for counties over 180,000 (Title 19, Section 863.1 et seq.)

(6) Joint city-county planning commissions for smaller counties (Title 19, Section 866.1 et seq.)

(7) County planning commissions for counties over 500,000 (Title 19, Section 868.1 et seq.)

(8) Lake area planning commissions (Title 19, Section 869.1 et seq.)

The TMAPC is the only planning commission in Oklahoma of type (5). You can read the enabling legislation beginning here at 19 O. S. 863.1, and clicking "Next Section" to read through the whole thing. Or you can click this link to see an index of the subsections of 19 O. S. 863. Most of the statute has to do with the planning commission's role regarding county zoning.

The planning commission's role regarding City of Tulsa zoning is defined by Title 42 of Tulsa Revised Ordinances. Also known as the City of Tulsa Zoning Code, Title 42 requires that amendments to the zoning map and zoning code be submitted to the TMAPC for a report and recommendation. You can search through the document yourself for references to "Planning Commission."

Since the Wright controversy regards applications for zoning map amendments in the City of Tulsa, specifically planned unit developments (PUDs) and a straight rezoning, let me highlight the applicable paragraphs:

Section 1107: TMAPC reviews PUD applications. The TMAPC is to determine:

1. Whether the PUD is consistent with the Comprehensive Plan; 2. Whether the PUD harmonized with the existing and expected development of surrounding areas; 3. Whether the PUD is a unified treatment of the development possibilities of the project site; and 4. Whether the PUD is consistent with the stated purposes and standards of this chapter. The Planning Commission shall forward its recommendation, the application, and the development plan to the City Council for further hearing as provided in Subsection 1107.E.

That's a pretty broad set of criteria, and it doesn't seem to preclude a TMAPC member from asking about a particular technical subject. The City Council has the final say.

Section 1700 requires TMAPC input on zoning code amendments:

The regulations, restrictions, prohibitions and limitations imposed, and the districts created may from time to time be amended, supplemented, changed, modified or repealed by ordinance, but no change shall be made until the Planning Commission, after notice and public hearing, files with the City a report and recommendation on the proposed change. In addition to the procedural provisions hereinafter set out, the Planning Commission shall adopt procedural rules for the conduct of zoning public hearings.

Section 1701 sets out criteria for zoning map amendments:

It is the policy of the City of Tulsa that in the consideration of proposed amendments to this code that:

Amendments will be adopted to recognize changes in the Comprehensive Plan, to correct error, or to recognize changed or changing conditions in a particular area or in the jurisdictional area generally.

Sections 1702 and 1703 deal with zoning text and zoning map amendments respectively. In both cases, the TMAPC is to report to the City Council, which has the final decision.

Nothing in these sections limits the kind of information the TMAPC can gather or consider in making its recommendation.

Nothing in the Oklahoma statutes or the City of Tulsa ordinances describes the TMAPC as a quasi-judicial body. The only explicit use of the term quasi-judicial with respect to the TMAPC is in the TMAPC Rules of Procedure and Code of Ethics. These rules are adopted by the TMAPC, and the TMAPC has the freedom to modify them within the scope of the enabling state and city legislation.

Section II. C. of the most recent version of the TMAPC rules says:

Although not forbidden, per se, ex parte communication has the potential to influence a Planning Commissioner's decision on quasi-judicial matters before the Commission. The Planning Commissioner who receives ex parte communication may, if he or she feels that it is appropriate, disclose this prior to public discussion of the subject matter.

The wording here suggests that there are matters before the Commission that are not quasi-judicial.

A section of the state statutes applicable to the TMAPC, 19 O. S. 863.23, provides a clue as to what matters would and would not be considered quasi-judicial:

Any person claiming to be aggrieved by any act of the [planning] commission in administering this act, or any regulations promulgated pursuant thereto, may as to any matter concerning plats, subdivisions and lot-splits, both as to land situated in the corporate limits of the municipality and as to land situated in the unincorporated area of the county, appeal directly to the district court of the county and the district courts of said counties are hereby expressly vested with jurisdiction to hear and determine said appeals....

There shall be no right of appeal from any act of the commission in its advisory capacity to the [city] council and board [of county commissioners] or from any of its acts which are subject to review, repeal or modification by said governing bodies.

So the TMAPC has the final say regarding lot splits, subdivisions, and plats, and those matters can only be appealed to district court. But that isn't the case when the TMAPC acts in an advisory capacity to the legislative body, as with zoning map amendments.

All the issues raised against Liz Wright have to do with applications for city zoning map amendments, which are not quasi-judicial, but legislative. The zoning map is a part of the city ordinances, and changing involves adopting an ordinance. A zoning change is a change of the rules.

The complaints against Wright disappear if they're considered in a legislative context. We don't expect members of a legislative committee to be dispassionate, to have no prior opinion, to avoid contact with interested parties, or to limit the questions they ask about a proposed change in the law. We don't expect a unanimous vote from a legislative committee, and it's normal for a legislator on the losing side of a committee vote to debate against the committee's recommendation when it reaches the final stage of approval.

So how has the impression spread that the TMAPC is a quasi-judicial body? It may be a misunderstanding based on the reality of a few TMAPC functions (approval of lot splits, subdivisions, plats) that are quasi-judicial. But I suspect that there are those interests who want planning commissioners to believe that their discretion on zoning changes is extremely limited, which would make it easier to drive them as a body to the preferred conclusion.

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About this Entry

This page contains a single entry by Michael Bates published on November 30, 2009 12:29 AM.

Karen Keith keeping Elizabeth Wright TMAPC accusations under wraps was the previous entry in this blog.

Karen Keith ouster of Liz Wright fails is the next entry in this blog.

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