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Board of Adjustment wants to participate more fully in LDC review

Wednesday, October 16, 2019 by Jessi Devenyns

The Land Development Code draft continues to make its way through the city’s boards and commissions, making its latest stop at the Board of Adjustment on Monday night.

The Board of Adjustment is tasked with sending feedback to the Planning Commission about the sections pertaining to variances and code interpretations – the areas of code that are germane to the board.

After discussing the best way to tackle the issue, the board voted to send the Planning Commission notification to further explore the rules of procedure related to the Board of Adjustment, how city staff conveys its interpretations of code language to the board and the language of new “level 2” special exceptions for variances.

According to the commissioners, these sections of the draft code need immediate attention.

In the new draft, any changes to the rules of procedure pertaining to the Board of Adjustment require approval by City Council.

“My concern is we are being singled out here in the new Land Development Code because we stepped over some line when no other board (or commission) is required to do this,” Chair Don Leighton-Burwell said. He was referring in part to the board’s decision to revise its rules against city legal’s advice this past February. He told the Austin Monitor that rules and procedures are only mentioned in the draft code in relation to the Board of Adjustment.

Other board members agreed, but Board Member Veronica Rivera voiced her opposition to revising that portion of the draft code. “We are created by the City Council so they can decide what we can and cannot do.” In February she had also voted against changing the rules of the board.

When it came to how city staffers inform the Board of Adjustment of new code interpretations, all of the board members agreed that staff should proactively forward those changes to the board, rather than waiting for the board to request them.

The board has previously asked for monthly updates of code interpretations by staff in order to remain up to date. Since the board ultimately has jurisdiction over interpretations, if there is a challenge, Leighton-Burwell told the Monitor that having access to the current interpretations prevents the board from being “blindsided.”

Board Member Melissa Hawthorne said at the meeting that having those interpretations in public backup would also help with transparency for the applicants.

The special exceptions for variances in the draft code raised a lot of questions from board members.

The special exception allows “the Board of Adjustment to approve a special exception for a permitted use that was approved by the city in error, without deceit or bad faith on the part of the applicant or owner who obtained the permit.”

“I’m not comfortable with that as a code section. If you have a hardship, you have a hardship,” Hawthorne said.

Leighton-Burwell told the Monitor that this is a new exception that did not previously exist, and while it gives city staff the power to declare what Leighton-Burwell called a “clerical error” and avoids putting the city in the position of having to go through a litigation process, there are concerns around how the exception could be implemented.

At the board meeting, he explained, “It’s my understanding that Special Exception 2 is a get-out-of-jail-free card for staff when they’ve made an error.”

Board Member Darryl Pruett noted that in order to grant such an exception, “We as a board can hold someone to a higher burden of proof to meet that particular exception.”

The board voted unanimously to explore these three issues more fully, with the exception of reconsidering Council’s ability to review changes to the board’s rules and procedures, which Board Member Veronica Rivera did not support.

Still, the board noted that there are far more items in the draft that need to be addressed. So board members voted to form a working group to delve deeper into the code. Board members gave Leighton-Burwell the responsibility of sending a letter to Council and the city manager to express their concerns regarding the rapidity of the process and the board’s desire to offer quality feedback with a bigger scope.

In the span of an hour, Leighton-Burwell said that when looking through other sections of the code, “I’ve come up with a list of 22 items where there’s a disconnect.”

“There’s so many contradictions,” Board Member Michael Von Ohlen said. “I was going to wrap my head in duct tape so it wouldn’t explode.”

Photo by John Flynn.

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