[Vision2020] Tortured Legal Interpretation

Greg Brown gregb@alaskapacific.edu
Tue, 28 Jan 2003 11:28:25 -0900


Visionaries:

I read with interest the legal interpretation offered
by Randy Fife regarding the ability of a citizen P&Z
member to testify before the Council.

His interpretation would have us believe that because
hearing rules provide for a complete record of the P&Z hearing to
be forwarded to the Council and that a provision is made
to allow P&Z member written comments (which are optional),
that these provisions act as a "bar" to further public testimony
in a de novo (new) hearing.

Isn't it more likely these hearing reporting rules were
designed to ensure that the the Council receive an accurate
and full accounting of the P&Z hearing process? One has
to go way out into left field (actually, out of the stadium) to
view the reporting provision as a "bar" to additional public
testimony from citizens (who may or may not be P&Z members)
which is, in fact, explicitly to be provided de novo (new).

The key phrase in his tortured interpretation is as
follows:

"A truly de novo consideration should include any and
all facts to be presented; however, it is my interpretation of the
Type 1 and Type 2 Administrative Hearing Procedures that
something short of a pure de novo consideration is anticipated."

He offers not a shred of evidence in support of this
interpretation. In fact, his interpretation directly contradicts state
law I.C.  67-6534 where the governing board shall, by
ordinance or resolution, adopt procedures for the conduct of
public hearings. At a minimum such hearing procedure shall
provide an opportunity for all affected persons to present and
rebut evidence.

Moscow residents need to ask themselves....which seems
a more reasonable interpretation of the law? That all affected
parties be allowed to testify as per Idaho statute or that
a reporting requirement in a City defined rule, unsupported by
any legal precedent, constitutes a "bar" to public testimony.

--
Greg Brown (gregb@alaskapacific.edu)

Associate Professor and Chair
Environmental Science Dept.
Alaska Pacific University
Anchorage, AK  99508
(907) 564-8267  FAX: (907) 562-4276
http://polar.alaskapacific.edu/gregb