[Vision2020] re: report:free speech in Moscow
Bruce and Jean Livingston
jeanlivingston@turbonet.com
Wed, 29 Jan 2003 01:35:54 -0800
This is a multi-part message in MIME format.
------=_NextPart_000_001C_01C2C736.C3C4A100
Content-Type: multipart/alternative;
boundary="----=_NextPart_001_001D_01C2C736.C3C4A100"
------=_NextPart_001_001D_01C2C736.C3C4A100
Content-Type: text/plain;
charset="Windows-1252"
Content-Transfer-Encoding: quoted-printable
BlankMr. Fife's analysis seems to rely on information that appears =
nowhere in the statutes or code sections which were cited and quoted in =
the attachment posted to vision2020. Perhaps there are other pertinent =
provisions of city or state law that would require the exclusion of a =
Planning and Zoning ("P&Z") member from addressing City Council as a =
public participant when the subject matter is about an application upon =
which the P&Z had previously issued findings. But nothing in the =
material provided by the City Attorney would appear to support such a =
draconian interpretation of what appears to be designed to be an =
inclusive, rather than exclusive process.=20
Earlier today on this listserve someone took issue with Mr. Fife's =
conclusion that the de novo process of review in City Council was =
"something short of a pure de novo consideration." I agree with that =
challenge to Mr. Fife's interpretation, and in actuality Mr. Fife =
appears to agree with it when he states immediately before his =
conclusion that: "A truly de novo consideration should include any and =
all facts to be presented." My copy of Bouvier's Law Dictionary, Rawles =
Revision, Vol. 1, defines de novo as "anew, afresh," and goes on to =
describe that when an error is made in a trial necessitating the =
overturning of a judgment, the case is entirely retried, and "a venire =
de novo" is awarded in order that the case again may be submitted to a =
jury. Thus, Council's review of a prior determination by P&Z is "anew, =
afresh" and not limited to, nor bound by, what was presented at the P&Z =
hearing. Mr. Fife is quite right that "A truly de novo consideration =
should include any and all facts to be presented." His interpretation =
that something less than de novo review is anticipated in a de novo =
proceeding is based upon an opinion not grounded in either the language =
of the City Code or state statutes that he has referenced. It would =
appear to suffer from the same interpretation problems that so-called =
"strict constructionists" refer to as rank "judicial activism."
The applicant and "public participants" are allowed to testify at these =
hearings. There is no definition of "public participant" that would =
seem to exclude anyone. The hearing order anticipates "public =
testimony" in support of and in opposition to the application, as well =
as "other public testimony." The only evident restriction on public =
testimony would appear to be that "[e]ach person who testifies shall =
provide the recording secretary with his or her name and a true and =
accurate mailing address." In further support of the reasonableness of =
a broad construction of "public testimony" is the passage which =
explicitly states that "Any person may testify through a designated =
representative." (My emphasis added to "any"). If Mr. Curley had a =
right to designate whomever he wanted to speak for him, it would seem =
that he could speak himself.
Mr. Fife further stated that "nothing in the City Code allows a decision =
making member of the Planning and Zoning Commission to address the =
Council other than through the 'entire product' of the P&Z hearing =
process." Much like his analysis of de novo, this assumes a restriction =
that is nowhere in the referenced statutory provisions, as far as I =
could determine. The public is allowed to testify at the de novo =
hearing before Council. Where is the statutory language that retracts =
that privilege from a P&Z member that is affected by a particular =
application and wishes to testify? =20
And "so what" if whatever limited record of the P&Z hearing is deposited =
with the Council? A live body beats a cold record any day of the week. =
Moreover, the P&Z member may have no idea what the recording secretary =
for P&Z may have included in the minutes of the hearing. Simply because =
the City Code requires some record of the prior P&Z hearing to be made =
part of the record of the Council meeting is no reason to conclude that =
such a record withdraws the right of a citizen member of the P&Z to =
speak at the subsequent Council meeting. Mr. Fife rightly made no =
intimation that other citizens, who previously spoke at the P&Z hearing, =
should be similarly muzzled before Council. Presumably, their =
statements were in the P&Z record, too. P&Z members should likewise =
retain their right as affected residents to testify before Council.
The only waffle room that I can see that would support the City =
Attorney's position is the definition of "decision making board," which =
is expressly defined to include both City Council and the P&Z. However, =
that interpretation would seem to fly in the face of both the de novo =
aspect of the second hearing before Council, the fact that the P&Z is in =
fact NOT the decision making board when the de novo hearing is before =
Council, and the state law provision that expressly states that "At a =
minimum such hearing procedure shall provide an opportunity for all =
affected persons to present and rebut evidence." Read together, a de =
novo hearing, one that is "anew, afresh" and which is required by state =
law to allow "all affected persons to present and rebut evidence," would =
seem to necessarily include an affected city resident -- even one that =
is a member of the P&Z.
In my prior life I served on a P&Z in Missouri, and I understand the =
frustration of P&Z members who see their hard work as unpaid volunteers =
rejected by City Council. But properly, I think that these difficult =
zoning and land use decisions ultimately should rest with an elected =
Council, rather than an appointed Commission, as a matter of responsible =
governance. Harry Truman said "the buck stops here." So, too with =
Council should the land use decisions rest. If enough of the public =
thinks that the P&Z is getting it right, and that Council isn't, then =
the electorate should say so at the next election. =20
But in the meantime, don't exclude our hard working volunteers from =
offering their insight at public hearings. Let all of the interested =
public speak at a public hearing.
Bruce Livingston
------=_NextPart_001_001D_01C2C736.C3C4A100
Content-Type: text/html;
charset="Windows-1252"
Content-Transfer-Encoding: quoted-printable
<!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0 Transitional//EN">
<HTML><HEAD><TITLE id=3DridTitle>Blank</TITLE>
<META http-equiv=3DContent-Type content=3D"text/html; =
charset=3Dwindows-1252"><BASE=20
href=3D"file://C:\Program Files\Common Files\Microsoft =
Shared\Stationery\">
<STYLE>BODY {
MARGIN-TOP: 25px; FONT-SIZE: 10pt; MARGIN-LEFT: 25px; COLOR: #000000; =
FONT-FAMILY: Arial, Helvetica
}
P.msoNormal {
MARGIN-TOP: 0px; FONT-SIZE: 10pt; MARGIN-LEFT: 0px; COLOR: #ffffcc; =
FONT-FAMILY: Helvetica, "Times New Roman"
}
LI.msoNormal {
MARGIN-TOP: 0px; FONT-SIZE: 10pt; MARGIN-LEFT: 0px; COLOR: #ffffcc; =
FONT-FAMILY: Helvetica, "Times New Roman"
}
</STYLE>
<META content=3D"MSHTML 6.00.2722.900" name=3DGENERATOR></HEAD>
<BODY id=3DridBody bgColor=3D#ffffff=20
background=3Dcid:001b01c2c779$d1e7e100$c871e4ce@momanddad>
<DIV>Mr. Fife's analysis seems to rely on information that appears =
nowhere in=20
the statutes or code sections which were cited and quoted in the =
attachment=20
posted to vision2020. Perhaps there are other pertinent provisions =
of city=20
or state law that would require the exclusion of a =
Planning and=20
Zoning ("P&Z") member from addressing City Council as a public =
participant=20
when the subject matter is about an application upon which the P&Z =
had=20
previously issued findings. But nothing in the material provided =
by the=20
City Attorney would appear to support such a draconian interpretation of =
what=20
appears to be designed to be an inclusive, rather than exclusive=20
process. </DIV>
<DIV> </DIV>
<DIV>Earlier today on this listserve someone took issue with Mr. =
Fife's=20
conclusion that the <EM>de novo</EM> process of review in City=20
Council was "something short of a pure <EM>de novo</EM>=20
consideration." I agree with that challenge to Mr. Fife's =
interpretation,=20
and in actuality Mr. Fife appears to agree with it when he states =
immediately=20
before his conclusion that: "A truly <EM>de novo</EM> consideration =
should=20
include any and all facts to be presented." My copy of Bouvier's =
Law=20
Dictionary, Rawles Revision, Vol. 1, defines <EM>de novo</EM> as "anew, =
afresh,"=20
and goes on to describe that when an error is made in a trial =
necessitating the=20
overturning of a judgment, the case is entirely retried, and "a =
<EM>venire de=20
novo</EM>" is awarded in order that the case again may be submitted to a =
jury. Thus, Council's review of a prior determination by P&Z =
is "anew,=20
afresh" and not limited to, nor bound by, what was presented at the =
P&Z=20
hearing. Mr. Fife is quite right that "A truly <EM>de novo</EM>=20
consideration should include any and all facts to be presented." =
His=20
interpretation that something less than <EM>de novo </EM>review is =
anticipated=20
in a <EM>de novo</EM> proceeding is based upon an opinion not grounded =
in either=20
the language of the City Code or state statutes that he has =
referenced. It=20
would appear to suffer from the same interpretation problems that =
so-called=20
"strict constructionists" refer to as rank "judicial activism."</DIV>
<DIV> </DIV>
<DIV>
<DIV>The applicant and "public participants" are allowed to testify at =
these=20
hearings. There is no definition of "public participant" that =
would seem=20
to exclude <U>anyone</U>. The hearing order anticipates "public =
testimony"=20
in support of and in opposition to the application, as well as "other =
public=20
testimony." The only evident restriction on public testimony would =
appear=20
to be that "[e]ach person who testifies shall provide the recording =
secretary=20
with his or her name and a true and accurate mailing address." In =
further=20
support of the reasonableness of a broad construction of "public =
testimony" is=20
the passage which explicitly states that "<U>Any</U> person may testify =
through=20
a designated representative." (My emphasis added to "any"). If Mr. =
Curley=20
had a right to designate whomever he wanted to speak for him, it would =
seem that=20
he could speak himself.</DIV>
<DIV> </DIV>Mr. Fife further stated that "nothing in the City =
Code=20
allows a decision making member of the Planning and Zoning Commission to =
address=20
the Council other than through the 'entire product' of the P&Z =
hearing=20
process." Much like his analysis of <EM>de novo, </EM>this assumes =
a=20
restriction that is nowhere in the referenced statutory provisions, =
as far=20
as I could determine. The public is allowed to testify at the =
<EM>de=20
novo </EM>hearing before Council. Where is the statutory language =
that=20
retracts that privilege from a P&Z member that is affected by a =
particular=20
application and wishes to testify? </DIV>
<DIV> </DIV>
<DIV>And "so what" if whatever limited record of the P&Z =
hearing=20
is deposited with the Council? A live body beats a cold record any =
day of=20
the week. Moreover, the P&Z member may have no idea what the =
recording=20
secretary for P&Z may have included in the minutes of the =
hearing. =20
Simply because the City Code requires some record of the prior =
P&Z=20
hearing to be made part of the record of the Council meeting is no =
reason to=20
conclude that such a record withdraws the right of a citizen member of =
the=20
P&Z to speak at the subsequent Council meeting. Mr. Fife =
rightly=20
made no intimation that other citizens, who previously spoke at =
the P&Z=20
hearing, should be similarly muzzled before Council. Presumably, =
their=20
statements were in the P&Z record, too. P&Z =
members should=20
likewise retain their right as affected residents to testify before=20
Council.</DIV>
<DIV> </DIV>
<DIV>The only waffle room that I can see that would support the City =
Attorney's=20
position is the definition of "decision making board," which is =
expressly=20
defined to include both City Council and the P&Z. However, =
that=20
interpretation would seem to fly in the face of both the <EM>de =
novo</EM> aspect=20
of the second hearing before Council, the fact that the P&Z is in =
fact NOT=20
the decision making board when the <EM>de novo</EM> hearing is before =
Council,=20
and the state law provision that expressly states that "At a =
minimum such=20
hearing procedure shall provide an opportunity for all affected persons =
to=20
present and rebut evidence." Read together, a <EM>de novo</EM> =
hearing,=20
one that is "anew, afresh" and which is required by state law to allow =
"all=20
affected persons to present and rebut evidence," would seem to =
necessarily=20
include an affected city resident -- even one that is a member of =
the=20
P&Z.</DIV>
<DIV> </DIV>
<DIV>In my prior life I served on a P&Z in Missouri, and I =
understand the=20
frustration of P&Z members who see their hard work as unpaid =
volunteers=20
rejected by City Council. But properly, I think that these =
difficult=20
zoning and land use decisions ultimately should rest with an =
elected=20
Council, rather than an appointed Commission, as a matter of responsible =
governance. Harry Truman said "the buck stops here." So, too =
with=20
Council should the land use decisions rest. If enough of the =
public thinks=20
that the P&Z is getting it right, and that Council isn't, then =
the=20
electorate should say so at the next election. </DIV>
<DIV> </DIV>
<DIV>But in the meantime, don't exclude our hard working volunteers from =
offering their insight at public hearings. Let all of the =
interested=20
public speak at a public hearing.</DIV>
<DIV> </DIV>
<DIV>Bruce Livingston</DIV>
<P> </P></BODY></HTML>
------=_NextPart_001_001D_01C2C736.C3C4A100--
------=_NextPart_000_001C_01C2C736.C3C4A100
Content-Type: image/gif;
name="Blank Bkgrd.gif"
Content-Transfer-Encoding: base64
Content-ID: <001b01c2c779$d1e7e100$c871e4ce@momanddad>
R0lGODlhLQAtAID/AP////f39ywAAAAALQAtAEACcAxup8vtvxKQsFon6d02898pGkgiYoCm6sq2
7iqWcmzOsmeXeA7uPJd5CYdD2g9oPF58ygqz+XhCG9JpJGmlYrPXGlfr/Yo/VW45e7amp2tou/lW
xo/zX513z+Vt+1n/tiX2pxP4NUhy2FM4xtjIUQAAOw==
------=_NextPart_000_001C_01C2C736.C3C4A100--