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Council Committee OKs BOA rule changes

Tuesday, August 4, 2009 by Charles Boisseau

With the blessing of the city’s Audit and Finance Committee, the Board of Adjustment can update the old adage “if at first you don’t succeed try, try again.”


The Board of Adjustment, which decides on property owners’ requests for variances to city zoning codes, has traditionally operated under a rule that permitted it to reconsider a case only a single time – for example, if a property owner brings new information to the board — before a property owner must seek redress in District Court.


But a recent case raised a potential flaw in the board’s procedures and caused a stir among neighborhood groups, which had feared that property owners would  request a second — or even third or fourth or fifth – chance to get a variance if their initial request was denied.


The issue came up earlier this year when a property owner asked the Board to reconsider a request for a variance for duplex properties at 1911 West 30th Street in the Bryker Woods neighborhood. The property owner wanted variances to decrease the setback requirement and increase the maximum impervious cover — now set at 45 percent for such residential lots — for a “through lot” fronting MoPac on one end and W. 30th on the other.


Jim Bennett, an Austin development consultant who represented the property owners, had pointed out that the Board of Adjustment – like all city boards and commissions – operated under Robert’s Rules of Order, and these rules allow the board to vote to temporarily suspend its rules, and thus board members could use this process to reconsider a request an additional time. Bennett made this request because he argued that the Board initially granted only a 1 percent variance to the impervious cover restriction after city staff inadvertently supplied them with incorrect information.


This raised the concern of neighborhood activists, who feared they would have to defend against potentially unlimited variance requests on the same case.


In June, the matter was withdrawn when the parties reached a settlement that no longer required a variance, said Assistant City Attorney Tom Nuckols. However, to prevent similar issues in the future, the Board of Adjustment voted to alter its by-laws to prohibit it from suspending its rules to reconsider a matter a second or more time within a single year. On Monday, the city’s Audit and Finance Committee approved the change to the Board of Adjustment’s bylaws.


“Mostly this is a preventive measure,” said Council Member Bill Spelman. “There was one case that was heard, reconsidered, and the Board suspended the rules to reconsider it a second time and a lot of people are concerned that this is going to open the door and become a common practice.


Spelman noted that it makes sense for the board to have the flexibility to reconsider a case one time — but there needs to be a hard limit.


“The reason for a reconsideration is new information becomes available that causes the majority to think that they’ve made a mistake—that they want to think about this again—and it makes sense to reconsider,” Spelman said. But if it’s unlimited, “the neighborhood can’t really rest knowing they’ve won if there can be numerous reconsiderations. They have to keep coming back to object even though the variance was rejected.”


Council Member Sheryl Cole, chair of the Audit and Finance Committee, said she was “pleased” that the Board of Adjustment addressed the issue with the simple change to the language of its bylaws.


“I am pleased that the Board of Adjustment is, once again, allowing only one reconsideration per variance request case,” Joyce Basciano, president of the Bryker Woods Neighborhood Association, said via e-mail. She added that the BOA could improve its process and performance if neighborhoods were given more time to research cases between the hearing notification and the actual hearing. “I believe this would reduce the need for reconsiderations.”


Bennett said he didn’t favor the change in bylaws. He told In Fact Daily last week that there may be other such occasions in which the BOA would need the flexibility to reconsider a decision a second time. 


In other developments:


  • Committee members heard a presentation from city auditors about a review of city funds that could result in audits in fiscal year 2010.

Auditors conducted the “Fund Review” in the wake of the misuse of the Austin Convention Center’s Equipment Replacement and Repair Fund (EARR) in 2007. That $1.3 million fund was set up to allow the city’s catering contractor to pay for upgrades and repairs to equipment, but funds were also misused by former Convention Center Director Bob Hodge for marketing purposes, such as golf outings and seats at sporting events. Hodge was fired in 2007 and later pled guilty to five separate misdemeanor counts of tampering with a government record for altering customer service surveys.


Acting City Auditor Taylor Dudley said the review did not identify any exceptions or breakdowns in other numerous city accounts. But to identify any potential misuses, a follow-up audit of “high risk” contracts was needed. Auditors will soon propose that it perform a citywide “contract risk assessment” as part its fiscal 2010 auditing service plan. At a future meeting, the Audit and Finance Committee will consider a “menu” of about 20 audits that the city will perform in the coming year.


  • Council Member Laura Morrison confirmed to In Fact Daily that she expects soon to join the Audit and Finance Committee as its fifth member. Mayor Lee Leffingwell could formally make the appointment as early as next week. City staff said they believe it would mark the first time the committee has ever had five members. Morrison would join Spelman, Cole and Council Members Randi Shade and Mike Martinez (who was absent from Tuesday’s committee meeting). Morrison noted her professional background includes experience with performance audits.

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