Well, I managed to get voted down 5-1 on my own motion on Tuesday’s Mayor & Council meeting (classic new guy move).
We were voting on Ordinance 609, a modification to certain sections of the Zoning Ordinance that lay out how appeals of Planning Commission decisions are handled. An update was needed. Before, the Zoning Ordinance appeared to not allow Planning Commission decisions to be appealed to Brunswick’s Zoning Board of Appeals, but it wasn’t clear about what body those decisions could be appealed to. That ambiguity was causing some doubt as to how the ordinance should be applied: An appeal involving a Planning Commission decision was in fact taken to the Board of Appeals last year.
The way the City proposed to modify the ordinance was to specify that Planning Commission decisions may be appealed directly to Circuit Court, which some other municipalities have done. At the first reading two weeks ago, we were under the assumption that this would eliminate the possibility of appealing Planning Commission decisions to the Board of Appeals.
There would have been advantages to that. It would streamline the process toward final resolution of a dispute, which could save time and money for someone determined to exhaust all appeals.
But there was also a concerning downside. Although the cost of appealing an administrative decision to the court can vary depending on several factors, it can be substantially costlier than appealing to the Board of Appeals (though those appeals are also far from cost-free, and there are compelling reasons for that, since the appeals process costs taxpayer dollars). Eliminating the Board of Appeals route could therefore have upped the financial barrier to pursuing an appeal at all, which didn’t sit well with me.
At that first reading, I expressed a preference for both options to be available to aggrieved parties: either appeal to the Board of Appeals first for a quicker, and likely less costly, decision, or bypass it and go directly to court.
Lo and behold, my wish came true! Between the first and second readings, Mayor Brown and the City staff checked with the City’s attorneys, who told them that the proposed modification did not in fact eliminate the option of appealing a Planning Commission decision to the Board of Appeals.
That was good news, but I felt the text of the ordinance could be clearer on that point. My concern was and is that the ordinance remains ambiguous enough that it could be interpreted differently in the future, in a way that would deny the option to go to the Board of Appeals instead of court. After all, we who were legislating the ordinance had been under the wrong impression about it just a couple of weeks ago.
I am also concerned that an ordinary person reading the ordinance might not realize that the Board of Appeals option is available. Although it is true that anybody challenging a Planning Commission decision is likely to consult an attorney, the potential challenger may have to pay legal fees even to talk to a lawyer and might reasonably want to have a sense of what is possible before deciding to do so. There is also something to be said for regular people being able to understand laws whenever possible. Take it from James Madison:
“It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood.” (Federalist No. 62)
So, I made a motion to add a line clarifying that the ability to appeal directly to court does not prohibit appealing to the Board of Appeals instead. Because I thought doing that would have implications for a couple of other sections in the ordinance, I also added to the motion that we ask the City attorneys to review whether those sections would also need to be changed. In retrospect, I probably shouldn’t have tacked on those things, since it made the action I was asking for more complicated.
The counterargument was that it wasn’t worth devoting more of the attorneys’ time to the ordinance given the assurances they had already provided. After all, lawyer hours do not come free to the City. That clearly won the day.
After my motion was voted down, the ordinance came up for an up-down vote and passed 5-0 without me. I abstained instead of voting no, because I think the ordinance under its current legal interpretation is a fair resolution of the issue on the merits. I just think it could be made clearer and therefore better and more durable, and that a modest additional investment of time and legal fees now would be worth it to achieve that.
You can read the ordinance here (pages 68-69).
And you can see the relevant sections of the broader Zoning Ordinance in context here (Articles 5 and 24).