Friday, July 17, 2015 by Jack Craver

Planning commissioners say they don’t have enough legal advice

The Planning Commission isn’t getting all of the legal advice it needs, according to Stephen Oliver, the newly elected commission chair.

City attorneys, who are typically present at the beginning of meetings to give legal opinions on development issues, often depart well before the meetings conclude, leaving commissioners on their own to predict the legal ramifications of their votes on tricky development decisions, such as Conditional Use Permits.

“Their presence is kind of unpredictable,” said Oliver.

The message the law department has conveyed to him in past conversations, he told the Austin Monitor, is that city attorneys will be available to the commission until 8 p.m.

Unfortunately, many commission meetings, which start at 6 p.m., go late into the night, often into the early morning hours. The most complicated legal questions typically arise on Conditional Use Permits, which are almost always at the end of the agenda.

While attorneys are reliably available for cases that have already been identified as controversial, Oliver says that they are often absent when the commission encounters an unexpected legal question on low-profile cases.

“I would say that most of the time, it’s kind of a nonissue, but you just never know on which given night we need city legal advice,” said Oliver. “They may not have anticipated that we would have that question.”

The legal uncertainty in which the commission often finds itself can lead to a lot of wasted time. The commission risks making a decision that is later found to be illegal, in which case the issue has to be readdressed. But more often, said Oliver, the consequence is simply that commissioners operate with a certain uncertainty.

“It can slow down our discussions, give us more caution in our thinking than would be necessary had city legal been present,” he explained.

Commissioner Jean Stevens echoed Oliver’s concern during an appearance on “Austin Monitor Radio” this week.

“I agree that some decisions might be compromised without that input from city legal, because you’re afraid to put the city in a place of jeopardy,” she said.

These frustrations are not new. David Anderson, who chaired the commission from 2011 to 2014, said he also struggled to get the necessary legal advice during meetings. The problem, he said, is figuring out how to balance the desire for the commission to have necessary expert advice from city staff on a range of issues – environment, law, transportation – with the need to conserve city resources and avoid making city staff attend meetings where they might not be needed.

“I do understand that there needs to be awareness and recognition that it’s not appropriate to have 50 people stay all night,” he said. “It’s probably not appropriate to bring every reviewer to every commission meeting on the off chance that something might be asked.”

The city of Austin’s public information office offered this response via email to Monitor queries: “We are continuing to review how we can best support City Council, its committees, and our citizen boards and commissions, both during the day and at night. We want to provide sound and timely legal advice to our clients while ensuring manageable schedules for the lawyers who work so hard for the City. We are confident we will find the right balance.”

By Deval Kulshrestha (Own work) [CC BY-SA 3.0], via Wikimedia Commons.

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Key Players & Topics In This Article

City of Austin Planning Commission: This commission addresses issues of land use as assigned to it by Austin's City Code. These include the abilities "[t]o make and amend a master plan, recommend approval or disapproval of proposed zoning changes and control land subdivision within neighborhood planning areas and submit, annually, a list of recommended capital improvements." It has sovereign authority, or the right to make final decisions on certain cases.

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