AUSTIN (KXAN) — Just as we’re nearing the end of the finish line for new zoning rules in Austin, a long-ignored complaint now threatens to derail everything. It comes ahead of a critical council vote on CodeNEXT, expected this summer. The problem is, one group, says the current makeup of the council-appointed Planning Commission is illegal.
And a list of questions Council Member Leslie Pool says she plans to bring to the city attorney is growing.
There are 13 voting members on the Planning Commission, including four architects, two engineers who work in land development and a non-profit real estate developer, all reflected in applications the members submitted to the city for the commission. That’s seven people with connections to real estate and land development. But the city charter, which voters approved, says there should only be four members with those ties.
A letter signed by Fred Lewis, Bill Bunch, P. Michael Hebert, Bill Aleshire, Dr. Fred McGhee, Roy Waley and Mike Lavigne to the district attorney, dated Oct. 30, asked the Travis County District Attorney to file a petition for quo warranto action to remove disqualified commissioners.
Though the complaint was submitted more than four months ago, Lewis, an attorney, says he’s been sounding the alarm for the last three years.
“If they wanted to fix it they would have,” Lewis said of council members. “The most significant thing it [the Planning Commission] will have done in the last 30 years is its recommendations on CodeNEXT. And yet they’re illegally constituted and they’re dominated by developers.”
Lewis believes those seven members could stand to gain with whatever version of CodeNEXT is approved. KXAN asked Lewis what his biggest fear is if the makeup of the commission stays the same.
“I have two problems. One, the public doesn’t get the Planning Commission recommendations it said it wanted,” Lewis said. “My second fear is this – if the Planning Commission is illegally constituted, as I believe and many other lawyers, then it is possible that every action they take regarding CodeNEXT is voidable. In other words not valid. So we will have wasted $8.5 million in consulting time, thousands of dollars of staff time and going to have to start over.”
“I honestly don’t know and I think we need to get the answer, a clear answer to that question,” Pool said, admitting if the Planning Commission’s votes were not valid, it could impact the timeline of voting on CodeNEXT. “Yes. Not to mention any number of zoning cases that they’ve ruled on in the last couple years.”
While the commission makes recommendations to present to council, it does not make the final vote on actual decision-making. But, Pool says the recommendations do carry weight.
Pool says she plans to press the city’s legal department for answers about how they can remove current commissioners and how soon. Commissioners currently serve two-year terms. She’s asking for the removal process under the current charter and under an amended charter. Any amendment to the charter would have to go to voters; meaning the earliest that would happen is November.Council, at this point, plans to vote on CodeNEXT before then.
Pool said “unless Law can show us a way to remove them under the current charter language,” any change likely won’t happen until after the CodeNEXT vote.
“It is right in the middle of CodeNEXT not because of us, but because the city refused to step up to the plate and follow the law,” Lewis said.
When asked what’s taken so long to correct the makeup of the commission, Pool said, “I know from my perspective I was hoping it would be addressed internally. Through the appointments process.” But since it hasn’t she said it’s time. “I wish this hadn’t happened… I just want to do it and get it done and get it done correctly.”
KXAN asked the city who is ultimately responsible for making sure the charter is followed.
In an emailed statement, a city spokesperson said, “As with all board and commission appointments, Council Members interpret eligibility requirements and determine the extent to which each candidate satisfies the requirements.”
Provisions related to the terms and appointments of planning commission members is something the Charter Review Commission was scheduled to take up Monday night.
The city is aware of the complaint to the DA’s Office. KXAN is still waiting on a response from that office to learn where the complaint stands.
The Planning Commission is expected to give a recommendation on CodeNEXT to the council in May.
KXAN reached out to every Planning Commission member for comment and received the following two responses via email:
“I have no affiliation with real estate or development other than being a home owner in Austin. While we do have several members who work in development & real estate, I have come to greatly appreciate their expertise. I routinely disagree with their postions, but know that I can trust the information they provide on technical issues that I have NO experience with.” – Angela De Hoyos Hart
“As one of the commission members not remotely connected to real estate or development, I consistently depend on the expertise of the architects and engineers on the commission to address the complex and technical issues before us. Anyone who has actually attended one of our meetings knows that these commissioners are frequently on opposite sides of an issue, so their profession has had no apparent impact on their vote.
Each of the members of the commission was publicly nominated and approved by the City Council, and I trust their judgement and process on the worthiness of each commissioner.
I am disappointed that some groups and individuals continue to spread fear and misinformation about the CodeNEXT process in an attempt to preserve the status quo of gentrification and skyrocketing home prices in Austin. We need reasoned and informed dialog, not fear-mongering and obstructionism, if we are to avoid a future as a sprawled, congested, and expensive city” – Conor Kenny
“Thank you for reaching out to the Commissioners as you begin to look into your story. I am not writing to influence one path or another, but in hopes that you can report on the big picture.
My fellow Commissioners and I volunteer countless hours of our time, sacrificing time away from our family, friends, and work. As Austin sleeps, we are often still at City Hall deliberating on cases. We typically meet twice a month, but with Codenext, that time has doubled, and that’s not including the time we spend studying the proposed code. Additionally, we all serve on other committees as well as work groups. Between the public meetings, we meet with our Council Members, the community, and the those with upcoming development cases. Many of us are also serve our own communities. I personally have helped to start two non-profits for the underserved and underrepresented and currently lead our neighborhood Cub Scouts organization. Our hearts are there to serve our fellow current and future Austinites and balance its exponential growth with the merits of Imagine Austin. We each bring forth this added insight and passion. The Council Members that have appointed us recognize this in us and chose us to represent their viewpoints and the communities that they serve. Backgrounds in “real estate and land development” is a secondary asset. Looking at the complexity of the case files, the current code, and now CodeNext, the knowledge required to review them far exceeds that of most citizens of Austin as well as any individual Commissioner. It is with the cumulative range of expertise of the knowledge of how the codes, planning, and the community interact with each other that leads to a deeper understanding of the big picture. It offers another layer of oversight and ensures that details between all parties are not lost in forgotten promises, leading to unintended results.
The requirement of the City Charter, its interpretation of the makeup of the Commission balanced with the responsibilities that it is tasked with is a conversation that lies with City Council and not those that were appointed. If there is ever a conflict of interest on a case, there is a recusal process that each Commissioner must follow which removes them from the discussion and votes.
We all try to be fair and just from the backgrounds we are from. Each case and piece of code affects communities in a multitude of ways. Having a diversity of backgrounds and familiarity with the tasks at hand help to ensure a thorough discussion and investigation.
Thank you for all your reporting efforts and reaching out.” – James Shieh