Wider discretionary powers for Board of Adjustment envisioned in CodeNEXT draft

Assistant city attorney Brent Lloyd made a small presentation at the joint meeting of the land use commissions last Tuesday night outlining a possible reconfiguration of the Board of Adjustment’s role in city planning as part of the changes on the CodeNEXT horizon.

Currently the BoA is mostly occupied by granting variances, specifically those relating to unique physical impediments to the development of a property. The board also handles a heavy load of administrative appeals.

“The (new) code envisions a wider role for the Board of Adjustment than they have played historically in the city of Austin,” Lloyd said at the meeting. He emphasized, however, that these ideas were not final and only on the table for consideration.

Opticos Design Inc., the third-party consultants to city staff in the CodeNEXT drafting process, advised the Law Department to discover some creative ways that could relieve the burden of zoning cases on City Council while remaining in compliance with state law, Lloyd said. One avenue they have explored is giving the BoA the discretion to review special exceptions.

When the 1984 land use code was adopted, many structures existed around the city that complied with previous site development regulations at the time of their construction but did not meet the new requirements. These structures were designated as noncomplying structures, and as long as their owners modified or maintained them as permitted by the new code, they were allowed to stay standing.

When a special exception is granted to a structure, that structure essentially earns the status of a noncomplying structure, and any setback violations under the current land use code are forgiven. Special exceptions can only be granted to structures whose violations are at least 25 years old, but for applications submitted before June 6, 2017, the violations only have to be 10 years old. The structure must also have a permitted or nonconforming use, share a lot with no more than one other primary residence and meet other requirements outlined in the code.

Zoning and Platting Commissioner Betsy Greenberg said that she had not been able to find what the voting requirements would be for the BoA in the new code. Presently, the board needs a supermajority to grant a variance or appeal.

Lloyd said that the draft authorizes the creation of a smaller panel of the board, made up of at least five members, that could tackle the majority of smaller cases to free up the regular agenda. With that setup, the supermajority would be calculated based on the size of the panel, not the full board.

“What will be the standard for the Board of Adjustment granting the new special exceptions?” asked Commissioner Tom Nuckols.

Lloyd replied that it is up for discussion and that cities across the country have set different parameters. “A use could require a special exception if it’s going to go above a certain intensity,” he said. “Or it could just require a special exception to do the use at all.”

Planning Commissioner Patricia Seeger asked if the public would still be notified about special exceptions, and Lloyd confirmed that they would.

Planning Commissioner Nuria Zaragoza expressed concern that if the BoA were to review special exceptions, their decisions would only be appealable to district court. “(District court) is not as responsive to the community as the Council offices,” she said.

Zoning and Platting Commissioner Ann Denkler agreed. “Council tends to deal with land use a lot more than the district judges that I’ve worked for,” she said.

Lloyd clarified that BoA appeals to district court would be handled more strictly than other appeals. “They’re not just sitting in the shoes of the Board of Adjustment and doing whatever they think the board should have done,” he said. “It’s a much more deferential appeal. Their decisions are very much just looking at whether the board did something that was completely outside the bounds of the law.”

The Opticos consultants were unavailable to answer any questions about the board’s future at the Feb. 28 meeting, but Planning and Zoning Department Director Greg Guernsey said that they would be present at the land use commissions’ next meeting on March 21.

Photo by John Flynn.

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