Monday, April 23, 2018 by Jo Clifton

Changes ahead for Planning Commission?

At this week’s meeting, City Council is scheduled to consider changes to how members of the city’s Planning Commission are selected. The city attorney’s office has offered two alternative approaches – one of which could have a radical impact on the number of engineers, architects and other design professionals allowed to serve on the commission.

The Planning Commission, as required by state law, makes recommendations to Council on zoning ordinances and also has the responsibility for approving subdivision plats and various other administrative decisions such as drainage, water quality and some other development regulations. The commission, as well as the Zoning and Platting Commission, has been working hard to understand and develop recommendations for the rewrite of the city’s Land Development Code known as CodeNEXT.

One group working to prevent adoption of CodeNEXT, or at the very least to make radical changes to it, is Community Not Commodity, led by attorney Fred Lewis.

Lewis and others working with him, including attorneys Bill Aleshire and Bill Bunch, have sought to change the makeup of the Planning Commission to eliminate some members with connections to the development community.

A 1994 amendment to Austin’s city charter requires that “a minimum of two thirds of the (Planning Commission) shall be lay members and not directly or indirectly connected with real estate and land development.”

The commission’s 13 members currently include four architects, two land use engineers, the director of operations for the nonprofit Austin Habitat for Humanity, and a lawyer with the Travis County attorney’s office whose specialty is real estate law.

Council Member Leslie Pool has been particularly concerned about the makeup of the commission and is interested in moving forward with the resolution – which would be the first step toward changing the commission’s membership.

Pool told the Austin Monitor on Friday, “I do think we need to nail down the definition of land use and real estate because up until a couple years ago, nobody seemed to have any issues with that definition, and all of a sudden we do, and we have to resolve this not only for this Council but for all other councils. And we need to have a process to make sure this doesn’t happen again.”

However, Pool said she does not want to make any changes to the commission before it makes its recommendations on CodeNEXT.

Last November, Lewis and six other citizens sent a letter to District Attorney Margaret Moore, requesting that she file a civil lawsuit to remove members of the commission on the grounds that too many of them were involved with the development business. (Their list did not include Tom Nuckols, who serves on County Attorney David Escamilla’s staff, although there has been discussion about whether Nuckols would fall in the developer-related category because he works on land use matters. In addition, Nuckols’ wife, Sherine Thomas, is the top assistant county attorney for civil matters.)

Moore only prosecutes criminal matters, so it would be natural for her to turn to the county attorney’s office to deal with a request for such a civil action, which is called quo warranto. That is not likely to happen, however, because any action Escamilla’s office might take could be perceived as a conflict of interest.

Escamilla explained, “I have not formally received a request (from Lewis), but I’m aware of it … but because of conflict of interest concerns we recommended that the complainant seek assistance from the attorney general’s office.”

The city attorney’s office responded to the request to the district attorney with a letter dated Nov. 13, 2017, asking her not to initiate the quo warranto proceedings that Lewis and the others requested. According to that letter, “state law does not authorize a quo warranto action based on the charter provision at issue. Given the Planning Commission’s importance to a wide range of essential city functions, we are hopeful that this matter can be resolved expeditiously.”

A spokesperson for the city on Friday said that they have not received a response to the letter. Lewis told the Austin Monitor that he was not aware of any actions taken by any of the officials he contacted, but he thought the attorney general was looking at the issue.

Generally speaking, the attorney general’s office files quo warranto proceedings in cases in which an elected official is no longer eligible to serve and has failed to resign. For example, an official would lose eligibility by moving out of the district from which he or she was elected. It is difficult to determine how the attorney general might react to this request, which is certainly out of the ordinary and raises the question of which Planning Commissioners he might seek to remove. Regardless of his decision, civil lawsuits move slowly, and decisions about CodeNEXT are coming up within the next few months.

In the meantime, with the prodding of some Council members, staff has presented options for looking more closely at whether members of the commission can be considered lay members and whether their connection to the development community should prevent them from serving.

A memo explaining Council’s options in adopting the resolution states, “Option A narrowly defines what constitutes a connection to ‘real estate and land development,’ to include only more intensive development of real property. It would not count fee-for-service design professionals against the two-thirds limitation unless they financed development projects or real estate transactions.”

However, the memo says Option B “broadly defines what constitutes a connection to ‘real estate and land development,’ to capture wider range of activities. … This option would count design professionals, as well as real estate agents and attorneys, against the two-thirds limitation if they profit from development projects or real estate transactions.”

Both options were to direct the city clerk to provide a questionnaire for applicants to open positions to help Council to determine whether an individual is directly or indirectly connected with real estate and land development. However, Option B would require new applicants as well as current members seeking reappointment to the commission to fill out the questionnaire to determine the applicant’s possible connections to real estate and development.

Pool said she had not made up her mind about which option she would support. However, she said, “I feel very uncomfortable being in violation of the charter, and we have been for three or four years.”

Council Member Jimmy Flannigan expressed no such discomfort with the current situation and said that he would be in favor of the less drastic action, which states that in order to be counted as being in the real estate/developer category, a person would have to have a connection with both land development and real estate.

Flannigan said, “I think it is important we have people with expertise on our commission, and ultimately the provision in the charter is really about people who are experiencing personal, professional conflicts in those positions.” He said the charter provision was really related to the fear that people had in the early 1990s that developers would become members of the commission.

Flannigan’s appointee to the commission is Greg Anderson, a former Council aide who is director of operations for the nonprofit Austin Habitat for Humanity.

Anderson said he had talked with people who remember the 1994 charter election. He said they were afraid that anti-Save Our Springs developers like Jim Bob Moffett and Gary Bradley might be placed on the Planning Commission and start making “good old boy deals … and there’s nothing even remotely similar to that today. To say that the fee services folks are somehow big-time land developers is about as big a stretch as you can get.” He said that he had been lumped into that category himself, even though his work is for a nonprofit.

“It’s the same old ‘be afraid’ rhetoric, and the fact is, I depend, and I feel that most of my colleagues rely heavily, on the engineering and architectural experience of my colleagues.” Anderson said he thought that the commission would be damaged by the loss of those professionals. By that logic, he said, “I guess you wouldn’t want any doctors on the medical review board.”

This story has been changed since publication to correct Greg Anderson’s job title. Video still courtesy of ATXN.

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Key Players & Topics In This Article

Austin City Council: The Austin City Council is the body with legislative purview over the City of Austin. It offers policy direction, while the office of the City Manager implements administrative actions based on those policies. Until 2012, the body contained seven members, including the city's Mayor, all elected at-large. In 2012, City of Austin residents voted to change that system and now 10 members of the Council are elected based on geographic districts. The Mayor continues to be elected at-large.

City Legal: The City of Austin’s law department.

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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