Ex Parte

Have you ever tried to talk to a Planning Commissioner or City Councilor about a land use issue and gotten the response, 'I can't talk about it because of ex parte'?

Just what is ex parte and why is it used? 

The term ex parte is Latin. It means 'by or for one party' or 'by one side.'  What does that have to do with land use concerns? Plenty.

In Oregon, land use is seen as important, so by law, changes in land use or zoning, must have public hearings.

When someone wants to make a change in the way a piece of property in Cottage Grove is used, they must file an application with the Community Development Department.  The application will often require a public hearing before our Planning Commission and, after that, before our City Council.

When considering a land use application, Planning Commissioners and City Councilors must remain impartial and render their decision based only on oral and written testimony submitted at a public hearing.  This testimony then becomes part of 'the record' and is the only basis on which the Planning Commissioners and City Councilors may base their decision. 

Here is where ex parte enters the picture.  Conversations that take place or documents that are provided outside the public hearing are considered 'off the record.'  They are ex parte contacts.

The problem with an ex parte contact is, although it is very difficult to prove that an ex parte (off-the-record) contact actually did impair impartiality, it may be viewed as having done so because one member of the decision making body had access to information that others did not.  Furthermore, if a decision is appealed, undisclosed ex parte contacts might influence the outcome.

The law states that public officials must disclose any ex parte contact they’ve had about a land use issue outside the public hearing setting. Such disclosure puts the details of the ex parte contact, 'on-the-record.' 

This means if you approach a public official with your concern, they will encourage you to voice your concern at the public hearing, tell you they cannot talk about the issue because of ex parte, and later disclose the contact and nature of the discussion, at the beginning of the public hearings before the Planning Commission and City Council.  This way everyone at the public hearing has access to the same information.

The ex parte rule only applies after an application for land use or zoning change is filed at the Community Development Department. If there is no application on file, then it's ok to talk about the subject.

It's easy to see how people can become confused about when ex parte applies.  For example: one of our most recent land use issues has been the application by Wal-Mart to expand the current store to a super center. It was okay to talk about that with public officials until the application was filed.  Now we can't talk about it with Planning Commissioners or City Councilors until the final decision is rendered by the City Council.

The situation is different with development on Mt. David.  The current development, SunRise Ridge, has been approved and construction is underway.  It's perfectly okay to talk about SunRise Ridge with any public official. 

Further development on Mt. David is purely speculative at this point. It's okay to talk with elected or appointed officials about that speculation. 

The key here is whether or not there is an application on file with the Community Development Department. In any case you can always talk about any land use matter with a member of city staff; they are not subject to ex parte rules.

If you do happen to talk with a public official about a land use matter that has an application on file, the public official merely has to disclose the contact
and its content, at the public hearing.

As you can see, it's easy to become confused about how to apply this important but often misunderstood legal principle.  But adhering to a few simple rules, combined with an understanding of the purpose and intent of the principle of ex parte, can help us all insure land use issues in Cottage Grove are given proper, legal consideration.