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Land use commissioners differ in tone, approach to neighborhood input

Thursday, September 1, 2011 by Kimberly Reeves

No two land use commissions in Austin approach input in the same way, as neighborhood leaders learned at last week’s Austin Neighborhoods Council meeting.


The Board of Adjustment, unlike other land use commissions, must rely on findings of fact and can’t be lobbied by neighborhoods. The Zoning and Platting Commission (ZAP) and the Planning Commission, on the other hand, welcome neighborhood input and prefer to see negotiated compromise. But each hears testimony in far different ways.


A pair of commissioners from each land use commission addressed a fairly well attended ANC meeting.


ZAP Commissioners Patricia Seeger and Donna Tiemann—who has recently moved on to the Planning Commission—noted the importance of neighborhood input.


“I always found it very helpful, meeting with neighborhood association representatives. I like to term it ground trooping,” Tiemann said. “When you bring documentation that validates your concern, that’s compelling, especially if the applicant isn’t prepared to show something that refutes that.”


Tiemann urged neighborhood leaders to be more specific with their concerns. Don’t just say a project is going to lower property values, Tiemann advised. Provide commissioners with specific, detailed concerns on a project.

The duo agreed they put very little faith in traffic impact analyses, which have been the source of argument in a number of recent contested cases. The numbers often seem “as much an art as a science,” Tiemann said, noting that both sides in a contested case often hire engineers that use numbers to come to completely conflicting conclusions.


Chair Dave Sullivan and Commissioner Saundra Kirk discussed Planning Commission with the group, with Kirk urging neighborhood opponents to designate “one angry person” during their presentations, with the balance focused on facts.


“It would really be incumbent upon you to know you are going to present your ideas first,” Kirk said of neighborhood presentations. “I think anger can be effective if it’s handled wisely. It is very rare that anger is managed wisely, is my take on it.”


Kirk also described Planning Commission, in Harry Potter terms, as the “dark arts” commission, one that handles both creating policy as well as implementing it. Committees participate in the ongoing comprehensive plan, review neighborhood plan issues, recommend capital improvements projects and update codes and ordinances.


Commissioners Bryan King and Jeff Jack, representing the Board of Adjustment, noted the board is sovereign, even quasi-judicial. Neighborhoods cannot appeal decisions to Council, although a neighborhood can move to reconsider a case if new information can be presented in 10 days. Such decisions, including signs, variances and code interpretation, are appealable to district court, rather than Council, King noted.


The one misconception that neighborhoods have about the Board of Adjustment is the concept of hardship, King said. Homeowners may have a personal hardship — grandma is in a walker and needs a sidewalk—but the actual hardship to be proven must be tied to the property, such as unusual topography or heritage trees or a ravine.


“Grandma may need a walkway, but that’s not a hardship that will run the test of the BofA,” King said. “It’s not a hardship unique to the property.”


Commissioners can’t meet with neighborhood leaders, Jack said. They can’t talk to each other in advance. In making a case, a neighborhood should consider facts and documentation that will give credence to their position. More often than not, an applicant is asking for forgiveness rather than permission, Jack said.


“It’s very important for a neighborhood to do their homework just as an applicant does their homework,” Jack said. “You need to go to that application, and if you have an issue with it, you need to present a counterpoint.”


In other words, it’s not a Wild West, Hatfields versus McCoys, Jack said. He added that compromises, welcomed at other land use commissions, are less likely to be approved at the Board of Adjustment if they fall outside allowable variances. And Jack warned that neighborhoods should not allow a compromise on a single case to begin a precedent for other exceptions in a particular neighborhood.


King added that every variance must be approved by six out of the seven commissioners.


“We’re very constricted,” Jack said.


Commissioners Karen McGraw and Jean Stevens, also recently promoted to Planning Commission, addressed the evolution of the RDCC, which considers variances to the McMansion ordinance. McGraw noted that areas of the ordinance, such as the consideration of two-story ceiling heights, were still being refined by the commission. A rewrite of the ordinance year after it was passed, however, had cut down significantly on cases, especially those dealing with articulation, McGraw told an audience of about 60 neighborhood leaders.


Instituting the ordinance had pointed how that each neighborhood has a difference tolerance level for density, McGraw said. Some neighborhoods actually have been far more comfortable with a higher floor-to-area ratio, which has sway commission decisions. Stevens did note, however, that developers and home owners also had gotten smarter with ways to work around the ordinance.


Questions from the audience included the progression of cases. Because it is a variance case, a homeowner can go to either the Board of Adjustment or RDCC. The Board of Adjustment decision, however, will be based on hardship. Fielding a case from the Chestnut neighborhood, McGraw said cases in a national historical register district do start at the RDCC, but the certificate of appropriateness belongs to the Historical Landmark Commission, which gives the latter the final say.

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