Guest commentary: Land Use: Ex parte contacts impair the integrity of the process
Our faith in public officials’ decisions rests on the public processes that produce them. Earlier this month, The Aspen Times received incorrect information from a source and therefore mistakenly reported that I attempted to undermine that process regarding Kloser Investments’ application to build a house, a shed, solar panels, a well and a septic system on the small “Hercules Lode” on top of Aspen Mountain — a mining claim that does not comply with the highly restrictive Rural/Remote zoning.
A correction was run the next day and updated online stating there were no ex parte communications with Commissioner Poschman, and that he recused himself for altogether different reasons. That correction matters, though. Not just to me, but to all Pitkin County residents, who deserve integrity in the public decision-making process.
We want to trust that public land-use decisions result from free and fair debate, not private promises or confidential communications, and the law therefore prohibits such ex parte contact with “quasi-judicial” decision-makers — such as the Board of County Commissioners — when it considers a development application.
Just like judges and juries, those decision-makers must hear every argument in the open and on the record. As the Washington Supreme Court explained a half century ago in the case Smith v. Skagit County, “the appearance of elemental fairness” is a “basic requisite” of land-use decisions. The public hearing process assures this elemental fairness, in both appearance and actuality, because it guarantees the public’s right to see and hear all evidence concerning a development proposal.
Once a public body begins to consider a complete land-use application, any substantive contact with the applicant or a third party outside the confines of a public hearing deprives the resulting decision of that “essential appearance of fairness.” What dealings took place beyond the public eye? What impressions might have been formed? None, perhaps, but the prohibition on these ex parte communications prevents such questions from arising at all.
In Colorado, quasi-judicial decision-makers are entitled to a presumption of “integrity, honesty, and impartiality,” but as in Washington, Colorado courts do not approve of the “appearance of impropriety.” As an attorney with ethical obligations of my own to uphold, I therefore took very seriously the incorrect information that I had engaged in ex parte communications. I trust in the public hearing process and would never attempt to undermine it.
We must of course presume that public decision-makers act with integrity, honesty and impartiality — and given my long experience with our Board of County Commissioners, I believe they always endeavor to uphold those ideals — but a presumption can only carry us so far. Public approval processes must also, at all times, maintain the appearance of propriety, and the incorrect information contributing to this paper’s reporting threatened to damage that appearance.
If we expected less of our public decision-making process, perhaps this concern with appearances would be unwarranted. But we deserve a process that guarantees public accountability. Our continued trust in public decisions depends upon it.
Marcella Larsen is the manager of the Larsen Family LP. She also is a land use attorney.
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