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board of adjustment

Should Board of Adjustment have outside counsel?

Thursday, August 16, 2018 by Jo Clifton

Two members of the city’s Board of Adjustment argued strenuously in favor of providing outside legal counsel for the board when it is interpreting city code, but the assistant city attorney who has been advising the board for several years took the opposite stance at Tuesday’s City Council Audit and Finance Committee meeting.

Board Chair William Burkhardt told the committee that the board had passed a resolution in favor of getting outside counsel to advise the board only when it is asked to interpret city code. He said the genesis of the resolution came during the last phases of Draft 2 of CodeNEXT.

“The intent was … we wanted to be ahead of the curve on this in anticipation of significant appeals that might occur when the new code was adopted,” he said.

“During the appeals that we’ve had, we’ve had the perception of ex parte communication. It’s not a performance issue with respect to the city attorney. It really has to do with a perception that we’re trying to rectify or correct in advance of the anticipated appeals,” as a result of CodeNEXT or another form of new land use code, Burkhardt said.

Burkhardt said he thought it was a problem that the city’s attorney communicated with the Development Services Department and then communicated with the board. Those communications with the board occur in executive session.

Decisions by the Board of Adjustment can be appealed to district court, and Burkhardt said the board is concerned that an appeal could be based in part on the fact that the board’s attorney is also acting as the attorney for the department.

“It’s a financially prudent decision to provide the board with independent counsel,” Burkhardt opined.

Longtime Board Member Bryan King told the committee he thought it was important to point out that the board would only be asking for an attorney on code interpretation cases, “not the standard run-of-the-mill carport setback variance.”

“I’ve been on the board for a dozen years, and we always go into executive session on an interpretation case. And we usually go into executive session with the attorney that’s been representing the city on the city’s side of the dispute,” King said.

“So, the attorney who’s been advising folks over at (Development Services) is now in executive session with us, and the public perception is that that’s skewed. I have felt that way for a long time and thought that we should be looking to an outside attorney for those particular cases. We don’t have that many,” King said, maybe two a year. “So the ask is only for the billable hours, maybe a couple of hours at a couple of meetings and then a couple of hours for prep time. But the payback in public perception is enormous. And I’ve heard comments over my time on the BoA about this very issue.”

Brent Lloyd, the assistant city attorney who advises the BoA, said state law gives the Board of Adjustment the authority to consider appeals of permit approvals and other sorts of decisions that affect application and enforcement of city code. He said the board was unique in that regard.

“Under the rules of professional conduct, the city attorney’s office represents all units of city government, and it’s not uncommon that units of city government have differences in perspective. It’s not uncommon that a staff approval will be appealed to the board. Of course, staff believes they made the right decision. … And the board will be critical of that decision and ask probing questions and in several cases reverse staff’s approval. We have on numerous occasions assisted the board in drafting decisions that reverse staff. Additionally, Mr. Burkhardt does not mention that several appeals that have come before the board have gone to district court, and in those cases we defend the board’s decision,” Lloyd said.

“We have steadfastly represented the board and provided fair and impartial advice and will continue to do so. Because the board exercises a unique role in the process, we’re mindful of the need to provide separate attorneys in certain types of cases,” Lloyd said, adding that the office would be willing to formalize the procedure for doing so and better communicate it.

Lloyd noted that other cities generally do not hire outside counsel but use their in-house attorneys for the board of adjustment. In smaller cities, he said the city will hire outside counsel not only for the board of adjustment but for many other duties. He said he thought the cost of hiring outside counsel would be significant.

Council Member Ellen Troxclair, the committee chair, agreed with Lloyd that the city should not be hiring outside counsel for the board.

Council Member Jimmy Flannigan is not a member of the committee but attended the meeting. He said he objected to the idea of taking action based merely on perception. “Because if we’re going to dictate how the city runs based on perception when there is no evidence that anything bad has happened, then this opens up a pretty unending well of outside consultants, outside attorneys. It allows the loudest voice, even when it’s one voice, to claim that they are the perception. And I just don’t think that’s a good way to govern or to do policymaking. … When you’re talking about code interpretation, much of the interpretation is about the intent of the Council that passed it, so it is important that the city be the voice of what the code interpretation is,” Flannigan said.

He concluded that outside counsel wouldn’t “add anything but time to the process” and would undermine trust in the city attorney’s office.

Council members Alison Alter and Kathie Tovo disagreed, saying that they wanted to pass the resolution on to Council with the committee’s endorsement. However, Mayor Steve Adler wanted the matter postponed. With Council Member Leslie Pool absent, there were not enough votes to either approve the resolution or reject it, and the committee ultimately decided to pass the request on to the full Council without a recommendation.

Photo by Jo Clifton. 

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