How much is too much communication between commissioners and residents?

During the June 5 Land Use meeting, some Manatee County commissioners questioned if a fellow commissioner is breaking the rules of the quasi judicial process.

And while nobody has specifically named that commissioner, District 5 Commissioner Bob McCann is sure the remarks are aimed at him.

"(The accusation) is garbage," McCann said June 16. "There is no ethics violation here." 

The situation has brought more intensity to Land Use meetings when commissioners are asked to make land development decisions such as rezoning and site plan approvals. Inappropriate quasi judicial behavior could open up the county to lawsuits, which could cost the taxpayers.

So what is the quasi judicial process? 

The process comes into play with land development decisions. Commissioners have to act as judges and base their votes entirely on the case at-hand and the existing laws and codes. 

Prior to any quasi judicial vote, the chair of the board asks, “Has anyone had any ex parte communication?” Ex parte communication is communication with one party which is involved in the case at-hand, but not the other. 

Florida statute allows for verbal and written ex parte communication between commissioners and those involved in the matter, whether it be residents or developers. However, the communication must be disclosed and part of the public record before the commission votes on the matter. 

Disclosure is required to give the other party “a reasonable opportunity to refute or respond to the communication.” Otherwise, the communication is considered prejudicial. 

Commission Chair George Kruse never said McCann’s name during the quasi judicial hearing June 5 for the Chalets at Lakewood Ranch, a development of 35 houses on about 12 acres at the intersection of Lorraine Road and 44th Avenue East, but it was implied as Kruse referred to the district commissioner for the area (District 5), which is McCann. 

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Kruse's concern was related to an email that suggested a neighborhood group was "working" with McCann to stop development along Lorraine Road.

The group of Esplanade at Azario residents — the Azario Responsible Land Development Coalition — is opposed to another proposed development — Lorraine Flats, which is a request to build 234 multi-family rental units off Lorraine Road at the outer edge of Azario.

Residents flooded commissioners with the same email — copied and pasted — that was generated by the coalition in opposition to the Chalets project. All seven commissioners received approximately 180 emails from the group.

The point of contention came because the flood of emails contained one attached email that was meant to be private, sent by coalition member Jack McGourty, and that went to commissioners by accident as part of the main email in opposition to the Chalets. 

McGourty's email thanked fellow members of the Esplanade at Azario group for collecting over 1,600 signatures for a petition to oppose Lorraine Flats. Then, the email reads: “As part of this strategy (to oppose Lorraine Flats), we are working with our commissioner to oppose all rezoning efforts.”

Commissioner Carol Felts didn't find anything particularly wrong with the statement and described the neighborhood’s actions as activism.

Kruse had a vastly different take.

He read the sentence aloud during the June 5 hearing and called the effort by Azario residents “coordinated, weaponized nimbyism.” He claimed that 66% of those residents who emailed commissioners built their homes within the past 24 months and two of the emails came from people who haven’t built their homes yet.

“This wasn’t even an attack on this project, it was an attack on the concept of development, coordinated — apparently — with a commissioner per the original email,” Kruse said. 

McCann interjected that Kruse should “stop those allegations” and reiterated that he did not engage in any ex parte communication with the Esplanade at Azario group. 

McCann told the East County Observer that he only received emails from the group, and per the quasi judicial requirement, those emails had already been submitted into the public record. 

Commissioner Amanda Ballard received the same emails and noted that no matter the group's opposition, the commissioners needed to make a decision based on the evidence at hand.

"We are required by law to look at the competent substantial evidence before us and make our decision based upon that competent substantial evidence," she said. "Otherwise, our decisions will not stand up in court." 

When a project is denied, the county attorney is required to present findings to the applicant as to why the project was denied, and the reasoning must meet the standard of “competent and substantial evidence.”

If the standard is not met, the decision could be challenged by the applicant and invalidated by the court. Also, if a commissioner has voted after having ex parte communication without revealing it, the decision also could be challenged in court.

McGourty said the coalition has either met with or communicated with several commissioners for over a year, including the former District 5 commissioner Ray Turner and commissioners Kruse, Felts and Mike Rahn. However, those meetings were to express overall concerns about traffic, safety and flooding on Lorraine Road between State Road 70 and State Road 64. The group maintains that the road lacks the necessary infrastructure to support new developments. The group says the communications did not involved a specific project.

"People need to be able to talk to their representatives," McCann said. 

A similar exchange over quasi judicial procedures happened in February when Heritage Harbour wanted to add 24 more rooms to a 400-room Hilton hotel on the corner of Stone Harbour Loop and River Heritage Boulevard. 

In that case, McCann was the only commissioner to report having received complaints from residents.

The lack of objections from residents became a point of contention for Kruse. He said nobody complained to him, nobody wrote in and nobody showed up in person to object.

Felts argued that commissioners are elected to represent the people in these situations so that they don't have to leave work to sit through a commission meeting. Kruse acquiesced with the caveat that too much back and forth with people in the commissioner’s district is prohibited in quasi judicial matters. 

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Outside of land use, most decisions commissioners make are legislative. The commissioners act as policymakers, so it’s within the law to act on what the public wants.

When the commissioners are acting as judges during a quasi-judicial hearing, they’re obligated to make decisions based on evidence alone.

McCann argued that he didn’t violate the quasi judicial process in the February case because he didn’t speak to residents specifically about the hotel rooms. 

“(Residents) have talked about how fast that whole intersection and the whole area is building,” he said. “This specific project is part of the global project that they’ve been talking about ever since I’ve been elected.” 

Again, McCann reiterated for the record that he had no ex parte communication.

Commissioner Tal Siddique noted a “consistent erosion in the quasi judicial process.” He said whether it’s board members introducing their own opinions or opinions outside of the quasi judicial process, it violates due process. 

“This is what I’m seeing or this is what he’s seeing is not proper evidence to submit,” Siddique said. “Everyone deserves a fair trial, whether it’s a large-scale, 5,000-home builder or someone bringing 34 units.”