After revisiting the public appeal process to challenge decisions made by the Design Review Board, the City Council decided Tuesday to maintain the current approach, but with a renewed determination to follow the letter of the law.
Mayor Pro Tem Steve Dicterow asked for a re-evaluation following a string of difficult appeals.
Historically, any appeals of a board decision meant that the City Council would hold a de novo hearing on the project, meaning that they would revisit and make a decision based on the merits of the entire project. That changed with the 2006 reforms recommended by a design review task force to improve the process and reduce contentiousness. In particular, the new rules established a “substantial evidence” standard that limited the Council’s scope of review to the specific grounds of the appeal, not the merit of the whole project, a role akin to that of an appellate court. Further, the DRB decision would be presumed to be reasonable, valid and not an abuse of discretion, and it would be the appellant’s job to demonstrate otherwise.
“The problem is us,” said Dicterow. “We have not been doing our job properly. We go right into the merits, right into the de novo,” despite being legally bound to only consider whether there is ‘substantial issue’ in the appeal, he said. “If we’re going to keep the standard, we’ve got to commit to using it and we’ve got to stick to it,” he added.
Dicterow, by profession a lawyer, noted Tuesday the Design Review Board’s essential role is ensuring that major remodels and new construction adhere to neighborhood values. “On any DRB issue, who should have the ultimate decision in upholding those values?” he asked, an appointed committee or an elected body?” In the context of some decisions, we have not looked very good,” he said, citing the recent Diamond Street appeal, which he referred to as “a disaster.”
“All in all, we think the system is working,” said Monica Simpson, chair of the DRB, whose members are appointed by the council. She feared people might abuse the process if the council returned to the de novo system of review, “which is what happened years ago before the reform,” she said. “Some of these projects are very difficult, but I don’t think going back to a de novo hearing is really going to solve anything,” she said.
Matt Lawson, who was chair of the now defunct task force that devised the 2006 reforms, argued against further tinkering. An analysis of the 227 projects before the Design Review Board during 2011 and the first half of 2012 shows that 76 percent were approved at their first hearing, and 93 percent by the second, Lawson reported. Of those decisions that are appealed, the Council rarely reversed the DRB’s decision, he said.
Perhaps project applicants need to be better informed of their options, Lawson said.
Mayor Bob Whalen, also an attorney, said he was not in favor or returning to a de novo standard of review and suggested that going forward City Attorney Phil Kohn might more aggressively rein in council discussion that strays beyond the “substantial issue” under appeal. He also put the onus on the Council. “…depending on the project, people veer away from the standard more or less, and everybody has to resist that temptation,” he said.
“It really is incumbent upon us to be aware of that. And if one of us starts drifting off, we need to say something, or Phil needs to say something,” agreed Council member Rob Zur Schmiede.
Zur Schmiede pointed out that among the 2006 reforms was the recommendation that the Design Review Board be given the same level of staff support as the Planning Commission. City Manager John Pietig said that staff was moving closer to that standard.
Pietig also said that he and Kohn would collaborate on creating a guideline to answer some of the recurring basic questions on protocols that often stymie
