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Moratorium remains in effect

Monday, May 12, 2003 by

Austin’s moratorium on new duplex development will remain in effect through the end of the month while city staff works out some minor changes to the new rules for duplexes, which were passed on first reading at last week’s City Council meeting. That moratorium runs through May 29, which gives the Council time to consider the new rules on second and third reading before the moratorium expires.

The new duplex rules are designed to block construction of the so-called super-duplexes: larger-than-average structures with up to six bedrooms wedged onto lots zoned SF-3. The structures are increasingly popular with developers in neighborhoods near downtown and the University of Texas. City staff has been working with neighborhood leaders and developers for the past several months to draft a new ordinance regulating duplex development after residents of Hyde Park and the North University neighborhood approached the Council with complaints about the structures.

Planning staff members have attempted to draft rules that will continue to allow traditional duplexes for two families while prohibiting the super-duplexes, which are frequently shared by up to twelve college students. To put a stop to that practice, the new ordinance would impose an occupancy limit of no more than three people over the age of 17 per unit. The staff-proposed ordinance also includes limits on impervious cover and building height, a requirement that developers provide additional parking for larger duplexes and new landscaping requirements. While staff also recommended that the maximum gross floor area of a duplex in the SF-3 zoning category be limited to 3400 square feet, Council Member Betty Dunkerley requested that the size be increased to 4000 square feet. “I would like to see that be 4,000 so that you could have a single-family duplex for the ‘empty nesters’ like me, or for young professional couples,” she said. The Council approved that change on first reading.

Neighborhood groups expressed satisfaction with the draft of the ordinance that’s being advanced to second reading. “I’m really happy that you have this ordinance,” said Karen McGraw of Hyde Park. But she also warned against a provision in the ordinance applying the occupancy guidelines only to newly constructed buildings. “This would be a disaster, because if you grandfather occupancy for every building . . . there’s no control other than for new buildings,” she said.

That provision also drew some concern from Mike McHone, who told Council members that enforcing residency limits based on the date of construction would prove to be confusing and problematic. “If the duplex was allowed to have six unrelated adults that was built yesterday, but it’s not going to be allowed tomorrow, it creates real problems for staff and enforcement throughout time,” he said. “I want to assure you that I want to kill these inappropriately large duplexes, I prefer to call them ‘mini-dorms,’ because that’s what they are.”

While McHone suggested instituting minimum requirements for kitchen, living and dining areas as part of the gross floor area for a duplex, Council members approved the staff-recommended provisions with minor changes. The existing moratorium remains in place since the new rules were only passed on first reading.

Tense conversation on amending plans could return this week

Discussion of the complex ordinance governing changes to neighborhood plans provoked palpable tension during last week’s Council meeting as Mayor Pro Tem Jackie Goodman and Council Member Betty Dunkerley sparred—albeit politely—over proposals to make it easier to amend those plans.

The ordinance generally prohibits submission of zoning changes and/or changes to the neighborhood plan during the first year after a plan is adopted and only during a specific month in succeeding years. It was approved by the Council on first reading last November and on third reading on March 20.

Dunkerley wanted to make sure that three types of development—Smart Housing projects, developments that would provide employment for at least 100 people, and those providing extra environmental protection—would be exempted from the time constraints of the ordinance. She also wanted to eliminate a provision in the ordinance requiring a super-majority (6 Council members) to approve amendments opposed by the neighborhood planning team.

The current ordinance outlines some exceptions, including hardship and clerical error. It also states that a plan amendment application may be submitted at any time by the neighborhood plan contact team or the neighborhood planning team. Otherwise, after the one-year time period, applications to amend could be filed during either February or August—depending on the location of the planning area. However, the ordinance provides for an exemption for projects certified as Smart Housing by the city. The other two types of development could proceed outside the usual time frame only if the neighborhood plan contact team and three Council members approved of the submission. Dunkerley wanted to eliminate that requirement. Council Member Daryl Slusher said he did not like the environmental provision because he thought it could be used as a “catch-all” for developers looking to get around the ordinance. Council Member Raul Alvarez also expressed reservations about the environmental provision.

Environmental Officer Pat Murphy explained he was recommending that the environmental loophole only apply on property that would be exempt from current code under HB 1704. In cases where the developer promised to abide by current regulations in spite of having such a grandfathering claim, Murphy said, it would make sense to allow the amendment to move forward. Slusher said that was a good idea. Dunkerley then made a motion to approve the staff recommendation and Mayor Gus Garcia seconded.

Goodman, who came into the room after the discussion had started, asked Assistant City Manager Lisa Gordon, “Why is staff offering a difference from what Council already passed?”

Gordon then tried to explain that she thought the Council had directed staff to draw up amendments to balance neighborhood desires with other city goals, without being specific about who had requested which amendments.

Goodman was clearly distressed to learn that those seeking an amendment to the plan under the environmental and job-creation portions of the exemptions would no longer be required to obtain the signatures of three Council members, as currently required. She was not happy to lose the requirement for a super majority to override the wishes of neighborhood planning team members either and asked Dunkerley whether she would accept as friendly an amendment requiring 6 votes to override a petition from 20 percent of the property owners in a neighborhood planning area.

Dunkerley responded that she could pass what was on the floor already and would just like to vote it up or down without any amendments. Goodman responded, “Well, Council member, we had it before and we did vote something in and we did vote something down and here we are reviewing it again. So, since some of the agreements that you and I had didn’t quite make it into the voting stage as I had thought, then I’m a little sensitive to voting something up and voting something down without giving some consideration to the priorities.” She said changing the ordinance in the manner proposed would undermine the efforts of those citizens who had given so much of their time to the planning process.

But Dunkerley said she had made a major concession when the ordinance was first approved by allowing the neighborhood planning team to bring amendments forward at any time without paying the city fees. She said she was still willing to allow that, but would not accept Goodman’s addition as friendly. Council Member Raul Alvarez seconded Goodman’s motion, but he was the only one to vote with her. Before returning to Dunkerley’s motion, Garcia noted, “I’ve never seen this group so quiet in my life.”

Slusher said he would support the ordinance changes but wanted to know what guarantees the Council would have that no member of the neighborhood planning team had a financial interest in an amendment the team was seeking. He asked if there was a way to ensure that the problem would not arise, but that, of course, meant further reworking of the ordinance. He said he feared that he had caused the item to be placed on the Council agenda again—not what he wanted at all. But in spite of those wishes, discussion of the item ended with Slusher’s motion to table and request that staff do some research. He suggested that they bring the item back for discussion next week, and possibly one more time after that. Dunkerley quipped, “Perhaps we can make it a standing item on the agenda.”

RMA could respond this month

The Central Texas Regional Mobility Authority (RMA) is in the enviable position of having so many companies eager to woo it that the RMA is now faced with two unsolicited construction proposals.

In March, the Central Texas RMA heard an unsolicited proposal to construct US 183A, a 12-mile stretch of tollway through Williamson County that will parallel US 183 and relieve traffic in Cedar Park and Leander. Last month, it was San Antonio-based Zachry Construction pitching a proposal to complete the southeastern leg of State Highway 45 South.

Road and Bridge Builders (RBB), a subsidiary of Zachry Construction created in 1991 specifically to build toll roads, wants to complete construction of the 7-mile southeast leg of SH 45 South. Some In Fact Daily readers may recall Zachry as the partner to developer Gary Bradley in a similar proposal to build the controversial southwest leg of SH 45 South.

David Zachry made the presentation to the Central Texas RMA board. The proposal should have appeal on a couple of counts. First, RBB has the eminent domain and permitting powers that have been given to RMAs. Even more important, the company is also willing to front the cost of the construction to the multi-million dollar project and leave it up to the RMA as to which side will eventually own the roadway.

“We will offer the Central Texas RMA the option of determining, if and when it chooses, to give us the right to own and operate it as a private toll road or you would have the right to take ownership of the project from us,” Zachry said. “We will be going into this with an owner’s mentality.”

That owner’s mentality means RBB will make decisions that are intended to benefit the project as a whole, rather than achieving a quick profit, Zachry said.

Attorney John Boehm of Fulbright & Jaworski, who is working with Zachry, told the board that RBB is “ready to hit the ground running.” RBB already has committed three years to the project, including a feasibility study. “There is no downside risk for you,” Boehm said.

Consultant Mike Weaver had cautioned board members that a response to Zachry’s unsolicited bid would have to be limited. At the conclusion of the presentation, Chair Tom Tesch told Zachry he should not assume the board’s lack of comment should be equated with a lack of interest.

“We’re grateful to Zachry for getting this very important project on the table,” Tesch said. “We have conveyed to TxDOT our extreme interest and desire to make this an RMA project.”

Commissioner Henry Gilmore added that State Highway 45 Southeast would have to be built, whether by TxDOT or the Texas Turnpike Authority. He agreed with Zachry’s assessment that timing the completion of the southeast leg of SH 45 South with completion of SH 130 would be crucial to the success of State Highway 130, intended to provide some relief to I-35.

The southeast leg of State Highway 45 South could turn out to be especially lucrative. Freight vehicles that choose to bypass Interstate 35 through Austin would access that section of roadway by taking SH 130. When completed, SH 130 will be an 89-mile bypass of Austin from SH 195 in Georgetown to Interstate 10 in Seguin. Lone Star Infrastructure is scheduled to complete construction of the first phase of the project by 2007.

RBB is one of a handful of for-profit toll road companies formed under a petition to TxDOT in the 1990s, Boehm said after the meeting. The Camino Colombia Toll Road in Webb County, completed in 2000, is one example of a project completed by a private company. The Camino Colombia, operated by VMS, Inc., has six operational lanes.

When an unsolicited bid is presented to the Central Texas RMA, it has three options: to ignore the bid, to award the contract to the bidder or to send the full project out to bid. Tesch asked that the unsolicited proposals be put back on the agenda for discussion in May.

Democrats to descend on Capitol . . . Democrats from Dallas, Fort Worth, Temple, Waco and Killeen are scheduled to join Central Texas Democrats at noon to protest redistricting on the South steps of the Capitol. Speakers include Austin’s Lloyd Doggett and other members of Congress threatened by Republican plans. The House of Representatives will convene at 10am and could begin debate on HB 3398 very quickly after that . . . Gammon wins injunction against Circle C Homeowners Association . . . Attorney Bill Gammon, who stopped the Circle C Homeowners Association from holding a board election in March, has gained much of what he requested in his lawsuit. District Judge Jeanne Meurer ruled on Friday that the Homeowners Association is not allowed to cap members’ votes. The rules say each member is awarded votes on the value of his or her home. Meurer said the board should follow that procedure. She also ruled that CCHOA must publish a voter list based on the calculation of voting rights by property value. She did not rule in Gammon’s favor on a few other matters, but granted his request to be given copies of certain communications from members to the board. Gammon said a hearing on his request for declaratory judgment on the legitimacy of current board members’ elections will be heard on June 12 . . . Board of Adjustment meeting tonight . . . The Sign Review/Board of Adjustment is set to meet at 5:30pm today at One Texas Center, Room 325.

© 2003 In Fact News, Inc. All rights reserved.

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