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Board of Adjustment changes rules for those seeking appeal

Wednesday, February 13, 2019 by Jessi Devenyns

After postponing the vote last month in an effort to ensure that a fair and open appeals process is available to the public, the Board of Adjustment made a decision Monday night that may prove contentious.

In a 6-5 vote at its Feb. 11 meeting, the board approved a revision of its rules that includes a controversial section intended to make appeals transparent and avoid re-creating a situation like the LifeAustin Church in 2008. That case became a hot potato when a citizen’s appeal was denied because it was made outside of the 20-day window, despite there having been no public access to the email that started the clock ticking.

In an effort to correct this, the newly approved section of the rules reads, “The BOA may accept an appeal after the deadline on the basis of waiver, estoppel, misrepresentation, misinformation, the interest of justice, or other appropriate legal and equitable grounds.”

City legal, however, advised that this language is not consistent with Austin ordinances.

Although intended to promote a more equitable engagement with the board, not all board members agreed that, as a quasi-judicial body, voting on rules that will force Council to take notice or be in conflict with the board was the ideal approach.

“I think it’s arrogance to make a change and then ask Council to catch up with us,” said Board Member Melissa Hawthorne. She acknowledged that while the rule change is trying to fix a problem, it is a problem that does not occur very often. “It has probably happened three times in a decade,” she said.

Board Member Michael Von Ohlen agreed, saying, “I’d prefer not to have to go through the challenge method.”

State law requires the board rules to be in compliance with city code. However, Von Ohlen pointed out that state law also has a section which states that a board of adjustment sets its timeline for appeals. Due to the specificity of this section and also the general principle that a higher body of governance supersedes those below it, Von Ohlen said passing the revised rules would not be a direct violation.

However, state courts that tried the case West Texas Water Refiners, Inc. v. S & B Beverage Co., Inc., have upheld that a board of adjustment “must act within the strictures set by the legislature and the city council and may not stray outside its specifically granted authority. Any action exceeding this authority is null and void and subject to collateral attack.”

Von Ohlen did note that if there is any legal challenge to the change, “It will be incumbent upon the board to go to Council and (ask them) to change code.”

Board Member Don Leighton-Burwell, who drafted the proposed language, explained that while there is always the possibility of having to go to court, “it is unlikely our proposed changes will change the number of appeals to this board.” He said since July 2017 there have been four appeals cases before the body.

As these appeals cases are such infrequent occurrences, he said that if the board itself did not pass updated rules immediately and instead waited for Council to alter code so that the board’s desired changes would be in compliance with both state and city regulations, the issue would die because “It’s not politically interesting.”

After significant circular discussion about the legality of the rewritten rules, the board passed the change with a 6-5 vote with Hawthorne, Eric Goff, Veronica Rivera, Kelly Blume, and Ada Corral voting against the change. The board members plan to discuss updating city code with their individual Council members.

Photo by John Flynn.

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