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Commission seeks more input on administrative approval cases

Monday, May 2, 2011 by Kimberly Reeves

At least one recent case has left some Planning Commission members wondering whether they should take a more careful look at 

administrative approvals that lack commission input or review.


Various city actions on plats, plans and subdivisions are placed on the consent agenda at Planning Commission meetings. A subdivision of a lot, for instance, either meets the requirements of state law or does not. So when a staff member reviews the case and provides approval, sometimes with what is considered to be acceptable administrative variances, it goes on the consent agenda.


One recent central city case, a subdivision that required an administrative variance on a critical environmental feature, ended up back at the Planning Commission due to neighborhood protest. It was an unusual case, and it got commissioners thinking about what they should review, and when.


Commissioner Saundra Kirk, in particular, wanted to take another look at administrative waivers and administrative approvals. Assistant City Attorney Brent Lloyd warned against pursuing powers that were explicitly granted to city staff in code, but Kirk said she wasn’t interested in reversing staff decisions.


“The thing that I object to is having to approve something that I have no input into and that I have no jurisdiction over. That’s why I look at it as a jurisdictional issue,” Kirk told her colleagues at their recent retreat. “If the staff has sole jurisdiction, then don’t make me take a vote on it. I don’t want to. If I have to take a vote on it, then I want to have input to that, on appeal or whatever.”


Chair Dave Sullivan was leery about spending a great deal of time on technical issues handled by staff, such as the validity of offering exceptions to turn radiuses, but Kirk said she was not as concerned about run-of-the-mill technical exceptions as those cases where a variety of interpretations could be used.


In the subdivision case, the interpretation came down to what qualified as a critical environmental feature. City staff and an outside engineer hired by the neighborhood had differing conclusions about whether the CEF would qualify for an administrative variance, as defined under the city code.


Commissioner Mandy Dealey, in particular, wanted to see some backup on granted variances on Planning Commission cases or even a listing of various variances that can be granted by city staff. The commission’s comfort level with waivers, and how city staff applies them, would only come with seeing them in action, Dealey told her colleagues.


“We can’t approve all kinds of administrative variances and subdivisions, and I think that the idea has come up, how free is staff to grant variances and at what point should those variances be addressed?” Dealey said after the meeting. “We don’t know what variances have been granted. We just get a staff recommendation in our backup that it meets all the requirements.”


Lloyd did agree that the commission did have options in terms of pulling some variances back under the commission’s approval. After some review of cases, the commission could decide to recommend a change in the land use code for subsequent cases, or waivers, to require commission approval.


“The answer is to consider making those permissive waivers, instead of granted waivers, and then it would be looked at by the commission,” Lloyd said. “As long as the code gives that authority solely to staff, however, it really legally complicates it and creates with subdivisions if it appears that the commission is assuming that authority when it’s not granted in code.”


Commissioners also discussed whether it might be advisable, in the more controversial contested cases, to provide some findings, just as they do to approve variances at the Board of Adjustment. Current requirements simply set out a requirement of “deliberations.” Lloyd said such documentation could be meaningful, as long as it was more deliberative than reading a list from city code.


“The more unique a condition is to a project, the more a condition is very specific to the unique characteristics of the property, or the more ‘out there’ a condition is, the more important it is to have on the record an explanation as to why,” Lloyd said. “A condition needs to proportionate to the impacts of the development, and it needs to not be arbitrary or capricious.”


Such specific documentation, if the decision is challenged, provides more evidence of a well-detailed deliberative process, Lloyd said.


Director Greg Guernsey agreed to compile documentation to give commissioners a fuller idea of what administrative variances are allowed and how they are used.


Dealey also wanted the commission to take up the issue of private deed restrictions. Private deed restrictions are not considered in determining cases, even though they are legally binding documents, Dealey said. At that point, it is no longer a land use case; it is an agreement between two consenting parties.


“I want to know if there’s a deed restriction on a piece of property that prohibits whatever we’re being asked to approve,” Dealey said. “Under my circumstances, my inclination on such a case would be say, ‘Okay, if there’s a private deed restriction against this on the property, I’m not inclined to approve it.’ They need to go ahead and go work those things out before they come to us.”

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