By Jonathan Vinson

Earlier this month, the Dallas City Council adopted several City Code changes and one Council rules change which are intended to make the City’s zoning process and its consideration of public-private partnership incentives more open and transparent. The major Code change approved by the Council is an added Article III-A to Chapter 12A of the Dallas City Code, on Ethics. The new Article III-A is on “Lobbyists” and goes into effect on April 1, 2010.

What is Considered to be “Lobbying”?

Article III-A does a number of things. First, it defines several terms, including “lobby” or “lobbying,” which includes essentially any type of communication with certain defined City officials someone in the real estate industry is ever likely to encounter, including the Mayor and Council, most board and commission members, senior city management, and department heads. This applies only to “municipal questions” as defined in the Article, which generally includes “public policy issues of a discretionary nature,” but does not include the day-to-day application and administration of City programs and policies, such as the permitting process and platting.

There are also quite a few exceptions to what is deemed to be lobbying, including requests for information, statements or written comments made on the record in a public proceeding, and communications made by persons solely on behalf of that individual.

New Registration and Disclosure Requirements

Those who are compensated or reimbursed to the extent of $200 or more per calendar quarter for lobbying are required to register. A separate registration must be filed for each client and a registration form relating to that client must be filed within five days after the start of lobbying activity for that client. For zoning cases, the registration must be filed within five days after the application is filed, but once the zoning application is filed, related contacts must be disclosed retroactively. These disclosures include the name and nature of the business of the client. Further, a statement must be made of all municipal questions in which the registrant has lobbied for the client in the preceding twelve months, or will lobby to the best of the registrant’s knowledge, for the client in the twelve months following the registration.

There are some exceptions to the registration requirement. Among these are internal communications to encourage members or employees of an organization to contact City officials, individuals who lobby but are not compensated by a client, and neighborhood associations, crime watch groups, or homeowners associations or their members when lobbying on a municipal question that affects the group or association as a whole.

Once a registrant has registered, quarterly activity reports are required for each client for activity during the prior quarter, which include the name of the client and a list of specific issues upon which the registrant engaged in lobbying, the name of each City official contacted, and the type of contact made. In addition, cumulative lobbying expenditures over $5,000 per quarter and certain other items are all reportable.

Of particular interest to property owners and developers who are not themselves lobbyists is a requirement for “non-registrant disclosure statements” in certain cases. Applicants, property owners or prospective purchasers of property who lobby on “designated zoning cases” or “designated public subsidy matters” are required to register. “Designated zoning cases” are zoning changes where the property is 25 acres or more; the proposed floor area for “retail personal service uses” is 200,000 square feet or more; the proposed floor area for industrial uses is one million square feet or more; the proposed zoning change is to a multifamily district of ten acres or more; the proposed zoning change allows 60 dwelling units or more per acre; or the City staff recommendation and the City Plan Commission recommendation differ. “Designated public subsidy matters” include tax abatements, housing tax credits, historical development tax abatements, Federal grant money administered by the City, tax increment financing, and economic development grants were loans.

New Campaign Contribution Restrictions

The Council also amended Chapter 15A, “Elections”, of the City Code to place additional time limits on campaign contributions. Beginning from the date the first notices of a public hearing on a “designated zoning case” are mailed, or when a “designated public subsidy matter” is posted on an agenda, until 60 days after the final disposition of that item, applicants cannot make campaign contributions to City Council members.

New Requirement for Two Seconds on Certain Motions

Finally, the Council added Subsection 7.13 to their Rules of Procedure require a main motion to approve or deny a “designated zoning case” or a “designated public subsidy matter” to be seconded twice, with each second made by a different City Council member. By seconding the motion, the Council member is representing that he or she has reviewed the facts and formed an opinion on that item. The purpose of this is to make applicants talk to more Council members about their cases.

Conclusion

There was lengthy and vigorous debate on these provisions and a good deal of input from the public, in particular from those who appear before the Council and City boards and commissions on a regular basis. Some on the Council expressed the view that a regulatory scheme of such complexity and far-reaching effect would have benefitted from more time for consideration, but the climate was such that the items were considered and approved very quickly.

Jackson Walker’s Land Use attorneys have participated in this process and studied the approved changes closely, and we believe that as the regulations come into effect and operate in practice, there will be questions which will arise. In particular, the City Attorney’s Office will likely be heavily involved in making interpretations of these regulations. We would be happy to answer any questions for you and to assist you in navigating this new and somewhat complicated system of registration and disclosure. For assistance, please contact

• Bill Dahlstrom – 214.953.5932 or wdahlstrom@jw.com, or
• Jonathan Vinson – 214.953.5941 or jvinson@jw.com.

Land Use e-Alert is published by the law firm of Jackson Walker to inform readers of relevant information in land use law and related areas. It is not intended nor should it be used as a substitute for legal advice or opinion which can be rendered only when related to specific fact situations.