contracting out the public trust

July 31, 2017 7:35 AM

Does anyone have experience with or knowledge of a town contracting out municipal responsibilities that involve public trust - specifically, planning/zoning, as opposed to something non-discretionary like trash pickup?

Our small town is unusually divided into town-and-gown worlds. Over time, as the gown faction became dissatisfied with town governance, they came to dominate the city council, and hired a city manager who in turn has contracted with a somewhat sketchy professional planning organization. All signs point to ur-libertarian changes, sneaking in under the radar: e.g., a wholesale objection to conservation easements; premature discussions with developers in prep for the sale of "empty" [open] space. The town charter specified that the planning director has to be a resident of the city, so the outfit hired a hack who is housed in developer-owned city property.

I've tried to do research on this group (the Berkley Group, to which we make absurdly high payments) but can't get far. They seem to be a tentacle of a Florida group that began by promoting luxury timeshares, and which seems to have a history of lawsuits. They have made some embarrassing errors, and claim expertise in conflict resolution which they absolutely do not have. The current conflict is that they have proposed significant zoning changes in support of the comprehensive plan, prior to the overdue 10-year review of the CP.

Has anyone any insights into coping with this or similar such contracting outfits?

posted by mmiddle to Law & Government (4 answers total)

IAACPC; IANYCPC Full disclosure: I've met some of the Berkley people, although I've never worked with or for any of them. I do not think they are sketchy. I wonder if you've confused this planning firm with The Berkley Group that develops massive timeshare projects all over Florida and elsewhere under the Vacation Village Resorts identity; they're not the same, even though one of the planning firm's prinicipals worked in Sarasota.

A lot of small communities contract out planning and zoning services to local consultants. P/Z consultants tend to fall into two categories: those that work on a national scale, like me, and those that work locally. The latter are often people who once worked for a larger local municipality or county; their networks and expertise are grounded in local issues and codes.

Back in the day, Mr. Carmicha (also a city planning consultant) provided contract services to a few small municipalities; he had been the county planning director and, while building his national practice, these clients were his bread and butter, and he maintained them even after he became widely known in the profession. His firm was paid based on the hourly billing rates and time of the staff involved. The requirements typically included attending x meetings/month of the various pertinent commissions and committees, reviewing applications, representing the town to the county and state, etc.. If anything unusual came up, including your example of the 10 year Comp Plan review, he would discuss likely costs with the manager or the mayor, depending on the jursidiction, and write a separate proposal for approval by the appropriate body. Other people work on a retainer basis and track the actual hours spent against it. NB: many jurisdictions charge developers for site review and just pass through the consultants' costs.

You characterized the firm's compensation as "absurdly high," without being specific, so let me just tell you that I would be expect the hourly rates for that firm to range from at least $100/hour for the most junior staff to $300 for the senior people.

You're clearly very angry about a lot of matters concerning how your town is run and its attitudes towards land use. But you're seeing a lot of conspiracies afoot, e.g., the planning director "hack who is housed in developer-owned city property," whatever that means, that may not be there. Regarding TBG, your anger may be partially misplaced. Just like staff city planners, city planning consultants, especially those working locally and even more especially those fulfilling the role of staff (vs outside expert), implement the philosophy of the client community as evidenced by the decisions made by the elected and appointed officials. TBG can try to influence the client to see things per whatever their planning philosophy dictates, but they aren't determining policy.

The Berkley Group can propose ideas about [$whatever] only to the extent that the relationship invites, allows or tolerates them: why would the municipality pay them to noodle around with ideas that countered the direction the leaders envision for their town? TBG can't just launch the review of the Comp Plan, although they can certainly point out that it's overdue. If TBG doesn't like the assignments, they can quit. If TBG thinks the town is asking them to do something that the profession deems unethical or profoundly unwise, we have a code of ethics to deal with that (if they hold the American Institute of Certified Planners credential). Short of that, TBG is hired help.

So when you ask for "insights into coping with" planning consultants, they aren't necessarily the bulk of the problem. If you think they are incompetent or misrepresenting their credentials (per your conflict resolution comment), complain to your elected/appointed officials just as you would any matter concerning how your town operates. If you don't like how they're approaching a topic, again the process entails complaining to your to your elected/appointed officials. If you get no satisfaction, vote the bums out. Run for office yourself.

By the way, recommending zoning changes to make the ordinance align with the Comp Plan is bog standard stuff, whether initiated by the consultants or the new Director; without that , the comp plan is toothless. And talking to developers before putting a piece of land on the market isn't necessarily the end of the world either; it's to get insights into the market, including the site's perceived advantages and deficiencies.
posted by carmicha at 9:18 AM on July 31, 2017 [4 favorites]

Response by poster: Thanks for your point of view, but this is not helpful. They are not local, and are not just proposing zoning code prior to CP, they are lobbying for voting those in well in advance of Cp review. And costs are relative to town budget. Etc. It is a partisan campaign by developers, and running for office would be too little, too late.
posted by mmiddle at 1:57 PM on July 31, 2017

Thanks for your reply. A few more points for your consideration...

In the world of planning consultants, they would be considered a local firm if your profile is up-to-date. Rockingham County, where the firm maintains offices, sits smack in the middle of the Shenandoah Valley, which is how your profile describes your location.

If you think that the planners are in cahoots with the developers, without having been directed by the town to work with them, that is a very serious allegation. If you have evidence, feel free to elaborate here or via memail and I can help you think through your options.

The fact that you feel the firm's fees are high relative to the town budget has nothing to do with whether they are reasonable or fair. If you think the planners are padding their invoices, that too is a very serious allocation. Unless your town is getting ripped off, the fees' relevance to your town budget mostly revolves around whether your elected/appointed officials made good resource allocation decisions vis-a-vis seeking outside help at that price and/or prioritizing the consultants' work appropriately.

Perhaps I was unclear about the zoning stuff... Updating the zoning ordinance may be about ensuring that the new development comports with the Comp Plan's goals. Or perhaps people may feel that the previous CP failed because the rest of the land use regulations (zoning code, subdivision regulations, etc.) didn't support it. If the new CP will be much like the previous one, the zoning moves make sense.

CP review can easily take over a year, so the zoning changes may be needed faster than that if significant development projects are in the pipeline or on the horizon. Some communities enact a moratorium when faced with this situation.

Regarding running candidates for office, I'm not sure what you meant by "[i]t is a partisan campaign by developers, and running for office would be too little, too late." Besides electing like-minded people, your only other options really boil down to filing lawsuits (on your own or as a group), leveraging other organizations' regulatory powers (e.g., getting a property placed on the national register or discovering an endangered species so you can sic the EPA on the case, etc.), organizing to sway public opinion via existing and new groups, and fomenting massive public turnout at civic engagement opportunities. It sucks, but you may need to move on or move out if the zeitgeist of your town is so diametrically opposed to your perspective.

With respect, I have trouble imagining that you're being effective in your protests if the tone of your engagement and your communication style mirrors what you've written here. You're very emotional about this topic--and it's great that you care so much about your community-- but the people you hope to persuade will find your dismissiveness unendearing and your selective attention to what they say frustrating.

posted by carmicha at 3:04 PM on July 31, 2017 [1 favorite]

Response by poster: I can understand the bias for your profession, but you're making a lot of wrong and unhelpful assumptions. Sorry I asked, and answered.
posted by mmiddle at 3:10 PM on July 31, 2017