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ZAP also suffers from lack of legal input, says commissioner

Wednesday, July 22, 2015 by Jack Craver

Planning Commissioners aren’t the only people at City Hall grumbling about the city law department.

Jackie Goodman, a former mayoral candidate and former longtime Austin City Council member who is now vice chair of the Zoning and Platting Commission, said she is also frustrated by her panel’s lack of access to city attorneys, who she said are often needed to help commissioners navigate the minutiae of the city’s massive zoning code.

“There’s just so much,” she said in an interview with the Austin Monitor. “Some of it is interpretation. Any observer of a legislative body knows (the members of those bodies) are not always good writers. They don’t always nail things down (in ordinance). And lawyers writing them often choose the more nebulous language.”

For instance, Goodman explains, ordinances often use terms such as “reasonable” that suggest a certain amount of interpretation, leading some commissioners to believe they have more discretion than is actually authorized.

While the Planning Commission most often needs legal advice on matters it is taking up during its long sessions – meetings that can stretch past midnight – ZAP meetings rarely take more than two or three hours, and usually finish before 10 p.m. Still, as was explained by Planning Commissioners, city attorneys are rarely present at zoning meetings after 8 p.m.

At a recent meeting, recalled Goodman, a number of commissioners abstained from a vote on a proposed subdivision over flooding concerns. It was Richard Suttle, an attorney for a developer, who reminded commissioners that any subdivision that complies with existing ordinances must be approved.

“He was our legal advice at that moment,” said Goodman, who added that she and other ZAP commissioners have addressed their concerns to city staff.

Insufficient legal advice was an unfamiliar issue to Goodman when she was appointed to the commission last year, after a nearly 10-year hiatus from City Hall. Throughout her years on Council – she left in 2005 – Goodman says she recalls a lawyer being present at planning and zoning meetings, in anticipation of legal questions from commissioners.

So what’s changed since? Goodman reasons that the culture of city commissions has changed in the past decade.

The 1990s featured a vigorous progressive movement to reform environmental and planning regulation, a symptom of which were regular heated disputes over development at Planning Commission and Council meetings. In those days, said Goodman, it was clear that a city attorney should be present at all times, particularly since the frequent controversies had created a large number of citizen activists who had become well-versed in city code and policy through their advocacy and were not hesitant to challenge commissioners on legal questions.

These days, the veteran politico reasons, “those battles have either been won or lost or compromised.”

“You will have a few (controversial meetings), but you will probably not have many where hundreds of people come out,” said Goodman.

Planning Commissioner Stephen Oliver told the Monitor last week that having attorneys available for the high-profile cases (no matter what time of night) is not the problem. The issue, he said, resides in the moments when an unexpected detail in a low-profile case leaves commissioners scratching their heads.

And yet, not all commissions appear to have the same problems. Melissa Hawthorne, who has served on the Board of Adjustment for six years, said there is always a city attorney present at that panel’s meetings.

Hawthorne suggested that this may be because the Board of Adjustment’s decisions cannot be appealed to another political body, such as Council, and can be challenged only in District Court, making it all the more important to prevent legal mistakes.

Bill Moriarty, who sits on the Water and Wastewater Commission, said he hasn’t heard any complaints from fellow commissioners about legal advice, which is not required at many of their meetings.

“The times we have needed legal advice, the city arranges to have an attorney there, and it’s usually very helpful,” he said. “I can’t recall in my four years of work a time where we’ve said, ‘Gee, I wish we had an attorney because we can’t do our work.’”

But, Moriarty added, the Wastewater Commission is not as “legally intensive” as the Planning Commission.

For her part, longtime Electric Utility Commissioner Shudde Fath told the Monitor that the EUC, on which she has served for nearly four decades, never needs legal advice. This, she suggested, is largely due to it being merely an advisory body.

“I can hardly ever remember when utility has had a legal question,” she said.

The city of Austin’s law department responded with a statement via the city’s Public Information Office: “The Board of Adjustment, Zoning and Platting Commission, and Planning Commission call upon the expertise of a limited group of Law Department staff members,” it reads. “We are constantly reviewing schedules and assignments to provide the best support possible for all meetings that require legal staff.”

This post has been updated to reflect the fact that Jackie Goodman did not run for Austin Mayor.

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

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