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Legal questions abound at Zoning Commission meeting

Friday, July 24, 2015 by Jack Craver

While some city commissioners have been complaining about a lack of support from the city law department during commission meetings, a recent session of the Zoning and Platting Commission showed that the volunteer officials can have a hard time figuring out what they’re allowed to do even when there is a city attorney providing advice.

The body struggled mightily to determine how it could appoint commissioners to serve on newly formed joint committees of the Planning and Zoning commissions that are being created as part of the recent overhaul of city boards and commissions. And, in the end, it appears as though the vote may not have been allowed thanks to posting issues.

The two new panels, the Economic and Capital Budget Committee and the Small Area Planning Committee, will include four Planning commissioners and three Zoning commissioners.

Although ZAP’s own bylaws state that the chair, Gabriel Rojas, has the authority to make the appointments himself, a number of commissioners – including Rojas – said it would be better to put such decisions to a vote of the entire body.

That choice did not pose a problem in determining who would sit on the Economic and Capital Budget Committee. Only three commissioners – Louisa Brinsmade, Sunil Lavani and V Bruce Evans – said they were interested in the three available slots. The commission unanimously approved their appointments.

But things quickly got awkward as the commission broached appointments for the Small Area Planning Committee, which elicited interest from four commissioners, including Rojas. The chair suggested that each candidate describe his and her strengths and reasons for seeking the appointment, after which each one would be subjected to a vote from the panel.

But the idea of voting to approve three of their colleagues, while turning down one, made commissioners visibly uncomfortable.

“I wish we could have more than three,” said Brinsmade, who later told the Monitor the process reminded her of a middle school dance.

The commissioners thus spent the next 20 minutes suggesting ways they could avoid such a heart-wrenching vote. Jolene Kiolbassa, one of the four interested in the committee, wondered whether the chairs of the Planning and Zoning commissions could serve on the committee as ex officio members in an apparent attempt to get Rojas to withdraw his own name. But Commissioner Thomas Weber countered that such a role was typically used for a specialist adviser to a committee, rather than a regular commissioner.

Sandra Kim, an attorney for the city law department, was present throughout the meeting and had been called on a number of times to answer questions, including whether the commission was permitted to allow citizen commentary if the meeting had not been previously posted as a public hearing. But Kim did not have insight into how the commission was supposed to elect members of committees.

Evans suggested that the commission submit written ballots. He said that a vote conducted in such a manner would be less confrontational, and wondered if the order in which the candidates would be submitted in a verbal vote might influence whom the commissioners picked.

Finally, after a period of collective head-scratching marked by multiple periods of conspicuous silence, Rojas announced he would withdraw his candidacy, saying there would be other opportunities for him to do much of the work he sought to do on the committee. Less than 30 seconds later, he reversed that decision.

“You know what, honestly, the Small Area Planning is probably my best area of expertise, so I’m going to stay in,” he said, supporting Evans’ idea that the commission move to vote by written ballot.

Then, other commissioners raised questions about whether written ballots were allowed. Weber recalled training that the commission had received on electing board officers.

“The bullet points in the PowerPoint said all board actions are public, there’s no ballot system,” he said. “That kind of suggests we wouldn’t do it that way.”

Further discussion ensued, with Rojas finally determining that if the commission’s bylaws authorized him to pick committee members himself, he would just go ahead and do it.

“I’ll go ahead and select (Susan) Harris, myself and Kiolbassa for the Small Area Planning Committee,” he said. “I think that reflects a good mix of backgrounds.”

Rojas apologized to Commissioner Ann Denkler, the lone candidate he did not select, saying he believed there would be opportunities for her to do similar work in other capacities.

“We try to be cordial, we don’t like to make somebody unhappy,” he told the Monitor after the meeting.

But Rojas was confident that the commission’s bylaws, as well as city ordinance, give the chair the sole power to make the appointments.

“I think we’re all also supposed to vote affirmatively to confirm the chair’s appointment – I don’t think we did that, but I think that’s just a procedural thing,” he said.

Denkler did not respond to a request for comment the following day regarding Rojas’ decision to leave her off the committee. City Council Member Leslie Pool, who appointed her to the commission, said she was under the impression that the appointments weren’t official because ZAP had not posted plans to make those appointments prior to the meeting.

In response to questions directed to the law department, the city’s Communications and Public Information Office said in a statement that the appointments were in fact properly posted, but that it would work to prevent future confusion.

“(I)n reviewing the appointments to both Joint Committees, we’ve recognized an opportunity to provide clarity to members of the commission regarding procedure and have recommended the commission vote on these appointees during its next meeting,” wrote public information officer Alicia Dean.

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