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Thursday, April 14, 2016 by Jo Clifton

Too many land-use professionals?

At Monday’s City Council Audit and Finance Committee meeting, Council members rejected the idea of allowing the Environmental Commission to have five land-use professionals among its 11 members.

The current rules governing membership on the Environmental Commission allow for only three land-use professionals, but because there are currently more than three members involved professionally in land use, commissioners wanted to change the rule. Members of the committee, however, rejected that change. Unlike with the Planning Commission, there is no charter provision governing the services of land-use professionals on the Environmental Commission.

Also, the Zoning and Platting Commission asked whether it could appoint members to form joint committees with the Planning Commission. Council Member Leslie Pool asked that the matter be postponed until she could get more answers about the impact on staff, among other things.

Pool said she still had questions about how to deal with the fact that the land-use commissions – the Planning Commission and the Zoning and Platting Commission – have more land-use professionals serving than the one-third of membership allowed by the city charter.

Article X Section 2 of the city charter requires that at least two-thirds of the Planning Commission be “lay members not directly or indirectly connected with real estate and land development.” There is no reference to the ZAP Commission in the charter, but its duties are similar to those of the Planning Commission.

It is not clear whether there would be serious legal consequences as a result of any breach of that rule.

There are 13 voting members on the Planning Commission, of whom perhaps fewer than half can claim no professional connection to real estate or development.

Patricia Seeger is a real estate broker, however, and Michael Wilson is a developer. Four members of the commission are architects: Commission Chair Stephen Oliver and commissioners James Shieh, Trinity White and Karen McGraw. There are also two engineers: James Schissler and Fayez Kazi.

In addition, Angela Pineyro de Hoyos is an innovation project manager at General Motors, and Nuria Zaragoza has a social services background. There are two attorneys, including Tom Nuckols, who is an assistant county attorney specializing in real estate matters, and Chito Vela, an immigration lawyer.

At least five members of the nine-member ZAP also seem to be land-use professionals or investors, including Chair Gabriel Rojas and commissioners V. Bruce Evans, Yvette Flores (who works for TxDOT), Susan Harris and Sunil Lavani.

A memorandum sent to Council last August from the city’s Law Department says that Council “is responsible for ensuring that commission membership adheres to charter requirements and has broad discretion to determine what constitutes a ‘direct or indirect (connection) with real estate and land development’ for purposes of the charter.”

When the city approved the 10-1 Council system of representation, the number of planning commissioners grew from nine to 13. Because of that change, the charter now requires that nine members of the Planning Commission not be connected with real estate or land development.

According to the legal analysis, “The extent to which an individual appointee’s background may touch on real estate or land development without counting against the nine-member minimum is a question that only the City Council can decide.”

In addition, the opinion says it is unlikely that a court would overturn a zoning ordinance or subdivision approval based on the number of land-use professionals serving on the Planning Commission. Also, the opinion states that “the state’s ‘validation statute’ would require such claims to be brought within three years of the challenged action.”

Pool told the Austin Monitor that she remains concerned but expects the number of land-use professionals to go down by attrition unless her colleagues decide otherwise on a case-by-case basis. She pointed out that each commissioner is appointed only for the term of the Council member who appointed him or her, so those appointed by Council members with two-year terms could be replaced after the November election.

Photo by www.houstondwiattorney.net made available through a Creative Commons license.

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Key Players & Topics In This Article

Austin City Council Audit and Finance Committee: a sub-group of the Austin City Council. It's members are charged with oversight of city fiscal operations and anything that falls under the purview of the Office of the City Auditor.

city charter: The city’s written grant to govern

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.

City of Austin Zoning and Platting Commission: The City of Austin's Zoning and Platting Commission addresses issues of land use as assigned to it by Austin's City Code. It has sovereign authority, or the right to make final decisions on certain cases.

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