[Vision2020] Tortured Legal Interpretation

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


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

"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