Get Full Government Meeting Transcripts, Videos, & Alerts Forever!
Get email alerts on the Land Use topic
No spam. Unsubscribe anytime.
Attorney Jerry Dah trains Elbert County planning commissioners on quasi-judicial duties, ex parte rules and conditions
Summary
At a training session before the Elbert County Planning Commission, attorney Jerry Dah reviewed commissioners'quasi-judicial role, how to handle ex parte contacts and site visits, the need for code-based conditions, and the legal standards (Nolan/Dolan) that limit exactions.
Attorney Jerry Dah led a training session for the Elbert County Planning Commission focused on procedural safeguards and legal limits that shape land-use decisions.
Dah, who identified himself as a town attorney (including for the Town of Georgetown) and counsel for local governments, told commissioners their primary role is advisory: to evaluate applications against the county's code and send a clear, reasoned recommendation to the board of county commissioners. "You're a recommending body," he said, noting the board is the final decision-maker and that commissioners should make findings grounded in the code rather than personal preferences.
Why it matters: land-use decisions by local planning bodies are quasi-judicial and can be appealed to courts. Dah emphasized that decisions resting solely on an advisory comp plan are vulnerable; commissioners should pair comp-plan concerns with a separate code-based finding to strengthen the record.
Dah reviewed key practical rules and legal limits. He warned against ex parte contacts after a case is pending and urged commissioners to avoid site visits that produce unequal information. "One of the ways you cannot be impartial is exparte contacts," he said, recommending that any unavoidable outside contact be disclosed to staff at the start of the hearing so it becomes part of the public record. On documentation brought to the podium, he advised accepting materials, giving them to staff, and encouraging speakers to submit copies in advance so the packet is complete for all commissioners.
On conditions of approval, Dah said financial cost alone is not a reason to reject a condition but insisted every condition must have a code basis. "Is there a code basis for that condition?" he asked when commissioners referenced drilling wells or other costly requirements, adding that conditions that effectively redesign the applicant's proposal are improper. He recommended that commissioners prioritize crafting findings and reasoning that will persuade the board of county commissioners rather than focusing on minor application typographical errors.
Dah also summarized U.S. exaction case law: Nolan (requiring a reasonable relationship between an exaction and the governmental purpose) and Dolan (requiring rough proportionality between the exaction and the project's impact). He cautioned that conditions and exactions must serve the asserted public purpose and be proportional to the impact being mitigated.
The session included multiple commissioner questions on public-comment handling, the weight of referral-agency comments, where to draw the line on burdensome conditions, and drafting review criteria. Dah advised giving referral comments weight when they tie directly to code criteria and urged commissioners to rework code language that mistakenly requires every listed criterion to be satisfied in every case.
Dah closed by urging commissioners to consult the county attorney in advance when unsure about possible conflicts. He said Colorado's conflict rules focus on potential financial gain or loss and close family relationships and recommended disclosure and stepping down when appropriate.
The training ended with Dah thanking the volunteer commissioners and a reminder that the commission had a regular hearing scheduled to begin shortly.
