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Board of Adjustment rules rewrite is postponed, again

Tuesday, January 22, 2019 by Jessi Devenyns

For over a year the Board of Adjustment has been discussing how to amend its rules in order to ensure that a fair and open appeals process is available to the public. This exercise came about as the board searched for a solution to avoid another episode like that of the LifeAustin Church in 2008.

Since this case made headlines, the Austin City Council has amended city code to require disclosure of decisions that are made outside of the public domain. However, in order to ensure that they are able to hear any of the appeals that result from future mishaps, the Board of Adjustment has been reworking its rules to underscore the fact that it has the right. But as a sovereign board, members have had to carefully and repeatedly review the language in order to verify with legal counsel that it conveys the correct message and does not conflict with either state or city law.

At the Jan. 14 meeting of the board, Chair William Burkhardt opened up the floor for discussion of the final draft that a working group had put together with city legal counsel. “We’ve done some final crafting of the language to make what we felt was a fairly reasonable compromise,” said Burkhardt.

However, what Burkhardt considered a compromise, Assistant City Attorney Brent Lloyd saw as a precarious decision that could have adverse effects on applicants, city staff and board members. “The working group has suggested language that would give the Board of Adjustment the ability to essentially waive city code with respect to deadlines.”

Currently, code limits the window in which appeals can be made to 20 days. Lloyd conceded that “there’s a lot of gray area in there,” but insisted that the board cannot legally eliminate altogether the deadline to file an application because it is not consistent with Austin ordinances.

At past meetings, Fred Lewis and Robert Kleeman – who represented the applicant for the LifeAustin Church case in front of the board – offered their testimony as citizens on how to change the rules to allow for an extension of the appeal time frame. Both lawyers advised that the appeals deadline could be extended within the board’s rules. “One legal opinion will say it’s not in the charter and another will say that since it’s not it can be adopted because it’s not defined clearly,” said Burkhardt.

Still, Lloyd expressed his “significant concern” at the idea of the board adopting rules that were directly in conflict with code.

Other board members signaled their unease with approving the conflicting language, especially in light of the fact that they received it four days in advance of the meeting. Board Member Veronica Rivera, who is an attorney for municipalities, explained that even for her it was not sufficient time to review the changes from the last draft that was given in October 2018.

“I feel really uncomfortable voting for rules that our attorney says would conflict with the code,” said Board Member Eric Goff.

However, all board members were eager to bring Council’s attention to the issue at hand and so the discussion became centered around the best way to do so. Rivera suggested sending a letter with a draft of the proposed rules attached. Board Member Brooke Bailey opined that the board should pass the rules with the conflicting language in order to force Council’s hand and open the discussion for a code amendment. A code amendment, according to Lloyd, is the only recourse in order to include an extended appeals timeline in the rules and have it correspond with city code.

Goff suggested looking at the rules more thoroughly. As written, “it just opens up Pandora’s box potentially,” he said.

The board voted unanimously to postpone the decision until next month in order to meet and decide how to best synthesize legal’s advice with their desire to extend the appeals timeline. However, while this normally would not raise any eyebrows, come Feb. 28, the board members’ terms expire. At the same time, Lloyd has moved to the Development Services Department and is no longer with city legal. With staff changes and a deadline approaching, board members are feeling some pressure to make a final decision on their rules.

Lloyd did agree to advise the board on this matter until it was resolved.

Photo by John Flynn.

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