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Commission drops secrecy, shares legal opinion

Wednesday, March 11, 2015 by Elizabeth Pagano

After some deliberation, the Planning Commission has released the legal interpretation that clarifies how much discretion it must deny subdivisions that include required connections to streets, if the commission disagrees with the connections.

The city’s legal opinion, according to a memo written by Assistant City Attorney Brent Lloyd, is that the land use commission does not have the discretion “to reject subdivision plats based on disagreement with the inclusion of existing streets, but (the code) does allow the Commission to reject approval of a subdivision that fails to include such connections.”

At their last meeting, commissioners heard the city’s legal interpretation of Section 24-4-151 of the code during executive session. At Tuesday’s meeting, they voted unanimously to waive attorney-client privilege and release that interpretation, but opted to hold most of their comments for now. Chair Danette Chimenti was absent.

In short, the legal memo from Lloyd says that when read on its own, 24-4-151 “can be interpreted to authorize the Commission to deny approval of a subdivision based on its disagreement with the inclusion of connections to an existing street network.”

However, the memo explains that power is limited when viewed in the context of the rest of the city code and legislative history.

“The stronger interpretation is that departure from existing street connections requires approval by both the Commission and the Director of Planning and Development Review,” wrote Lloyd.

The full text of Lloyd’s memo is available at the end of this article.

As was the case in the commission’s previous meeting, Commissioner Brian Roark pushed to have the legal opinion made public.

“I don’t think the traditional attorney-client privilege applies in this situation,” said Roark. “We are simply interpreting a public statute. … I don’t think there is anything that needs to be secret about that. I think we need to be transparent to the public about how we interpret our own statutes. I think they have a right to know.”

Roark pointed out that the public had asked for the legal interpretation in the first place, and has been pursuing the answer for months.

Following the vote to release the interpretation, Roark descended from the dais and distributed copies of the once-confidential memo to the audience. The audience comprised mostly South Austin residents who discovered the ambiguous piece of code during their fight against the Lightsey 2 development and brought it to the attention of commissioners.

Though Lloyd came to the meeting prepared to explain the interpretation to those in attendance, it appears that conversation will take place at the commission’s Codes and Ordinances Committee instead.

Commissioner Richard Hatfield worried that they could be breaking the law by revealing the conversation that took place in executive session. Roark said that was not true, and Lloyd affirmed that it would not be illegal to discuss what had occurred.

For his part, Commissioner James Nortey supported the motion, but wanted to make clear that it had nothing to do with the Lightsey case at this point. Instead, he said, “This is about shedding light on city documents.”

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