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State law leaves the Historic Landmark Commission in gridlock

Wednesday, October 2, 2019 by Jessi Devenyns

Getting a property zoned historic when the owner opposes it requires a supermajority vote at City Council. Yet even getting such a case before Council is an endeavor that requires the support of the Historical Landmark and Planning commissions.

Prior to September of this year, that support could come in the form of a simple majority. Now, changes from the state Legislature have made it necessary for either the Planning Commission or the Historic Landmark Commission to have a supermajority vote when recommending that Council considers zoning a home historic against an owner’s wishes.

A supermajority vote is a vote with two-thirds of the voices on a board or commission. This requirement is not variable based on the number of commissioners in attendance; instead, the required number of votes is based on how many commissioners are nominated to sit on the dais.

Deputy Historic Preservation Officer Cara Bertron told the Austin Monitor that while this heightened threshold for recommendation does increase the onus on commissioners to attend every meeting, “I think the strongest historic zoning cases will have a supermajority for the most part.”

Historic Landmark Commissioner Kevin Koch similarly told the Monitor that the really remarkable structures in the city will likely get the support they require for a historic zoning recommendation, but overall, the new law “was a step back for preservation because it reduces our ability to save important structures.”

According to him, the new supermajority requirement risks running out the clock on cases.

Bertron explained that all cases that come on the commission’s agenda must still adhere to the 75-day timeline during which the commission is obliged to take action or the case will simply move forward without their input. This puts the commission in a sticky position if it continually postpones a case due to attendance issues. They could be forced to make a decision and hope that the Planning Commission supports the vote with a supermajority in favor of a case, or they can simply let the case continue along its path without their recommendation one way or another.

If neither the Planning nor the Historic Landmark commission has a two-thirds vote, the case will die before it reaches Council. The law, however, only requires that one of the two commissions recommend a case for historic zoning if there is owner opposition. Council still needs a supermajority vote to zone the case against a property owner’s wishes.

For the past few months, due to absences, the Historic Landmark Commission has been lacking sufficient members to make a supermajority possible. While a postponement is a legally acceptable alternative for those occasions, Commissioner Alex Papavasiliou explained to the Monitor that every postponement means a 30-day delay for a case and that an extension is made at the expense of efficiency.

Papavasiliou, who expressed frustration regarding the new law at the last meeting of the commission, said he empathizes with applicants who are trying to get through the process. By adding this new layer for commission approval, “now the bar is so high, you don’t even have the ability to take that action,” he said.

While only one of the two commissions that hear the case is required to have a two-thirds vote of support, the Historic Landmark Commission seems unwilling to roll the dice and rely on the Planning Commission for a supermajority recommendation on historic cases. This month, the HLC has repeatedly postponed cases that come before it with owner opposition.

This is not the first time commissioners have been subjected to a higher bar to recommend the preservation of a historic structure against an owner’s wishes. Before the code amendment was abolished in 2017, the Historic Landmark Commission was required to have a supermajority to initiate a case for historic zoning against an owner’s wishes. This less draconian version from the state only requires such a vote when it comes to recommending over the objection of a property owner. A case can be initiated with a simple majority.

Still, commissioners shared their disappointment that attendance in recent months has effectively brought disputed cases to a halt. Commissioner Koch told the Monitor that he had previously suggested instating alternates for commissioners for cases in which a designated representative would be unable to attend a meeting.

Bertron said that there were no discussions currently about nominating alternates for the Historic Landmark Commission. However, she did agree that attendance has been “slim” recently. To increase the chances of a more robust turnout for cases that require a supermajority vote, “We’ll be reaching out to commissioners more in advance,” she said.

Even with the more stringent requirements, Koch said he doesn’t expect the new law to cause too much trouble since most cases do not fall under the specific set of circumstances that would require a two-thirds vote – in fact, it’s only happened three times since 1974. “It’s a pretty extreme measure to go against an owner’s wishes,” he said.

Photo by Mark Norman Francis made available through a Creative Commons license.

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