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Monday, January 16, 2006 by

Council rejects grandfathering appeal

Legal barriers trump request of developer, neighbors

Last week, Lumbermen’s Investments lost an appeal to the City Council of a Zoning and Platting Commission decision to deny grandfathering on a tract in the Village of Western Oaks just west of MoPac. The case demonstrates some of the complications caused by grandfathering of development regulations under House Bill 1704.

The history on the tract in question, part of the 634-acre Village of Western Oaks development off Davis Lane in Southwest Travis County, relates to the complex history of the subdivision. It appears that the city approved both office and retail on the four-acre site off Davis Lane, a fact attorney Jerry Harris attempted to use to his advantage during last week's Council hearing.

A preliminary subdivision case was filed on the Village at Western Oaks back in 1984. At the time, the developer proposed 21,100-square feet of retail on the four-acre tract. It was part of an independent municipal utility district until the land was annexed into the city in 1998. Various amendments were made to the plan between 1984 and 1998. The land was zoned GR-CO, explained city staffer George Zapalac, when various restrictions were placed upon the land. Zapalac said watershed regulations in effect in 1985 would apply to the property if the developer chose to develop under the plan approved at that time.

Otherwise the land, which is within the Barton Springs watershed, is governed by the Save Our Springs Ordinance. During a brief time period when House Bill 1704 was repealed and the city was in the process of an interim zoning ordinance, a zoning ordinance was passed on this land that would allow the tract in question to be developed as office space. Council, using its own guidelines, found that the office space would be an acceptable alternative for the use of the land in question.

When a site plan was brought forward for retail back in September 2005, Lumbermen’s asked that the site be grandfathered back to its preliminary plans for retail, but a more dense retail than the GR-CO restrictions of 1998. The Zoning and Platting Commission rejected that plan because the project failed to meet its covenant restrictions. Neighbors were vehemently opposed to additional retail along an already clogged exit off of Loop 1, especially with retail planned just up the road off Escarpment Drive.

Harris asked the Council to reverse the ZAP decision, but allow Lumbermen's to use the previously approved site plan for office space. Harris argued that office had clearly been approved at one time and, if that argument didn’t work, that office could simply be reapportioned from other parts of the development. One parcel meant for office, for instance, had shown the presence of an unexpected cave on the site and had been dedicated to the city as parkland.

Environmentalists approved of the less intense office use on the site. The neighbors in Western Oaks loved the concept too. Even Council members preferred it, as Council Member Betty Dunkerley noted during the hearing.

“I think, in this situation, that virtually all of us, including the neighborhood, want to find some way technically to get office on this site,” Dunkerley said. “I wonder if, perhaps, we could ask the City Attorney if there’s a way we can get there and get over this technical hurdle.”

But Assistant City Attorney Marty Terry told Council members it was impossible to grandfather the land to the original office plans that had been approved so many years ago because there was no evidence it should be grandfathered.

“We understand that office may be better suited for this tract. We’re not saying that you can’t do office,” Terry said in her explanation to Council. “What the staff is saying is that this is a continuing project and for a continuing project, you have to show a continuing intent to do office on this tract. All of the evidence we have, and we have no contrary evidence from the applicant, is that that’s not the case.”

Terry ruled that the land can’t be grandfathered back to the 1985 watershed requirements. She said office could be suitable for the land, but only office space as it applied under the current code. That was the dilemma, Terry said.

Mayor Will Wynn prompted her to try to come up with an alternative direction that could get the city out of the box it was in and give Lumbermen’s a chance to provide more desired development on the tract. Terry noted that some had suggested a transfer of development rights – even development rights on land already dedicated as parkland – to attempt to make up the difference in past and current code requirements.

“If there is some value that the developer could come forward with to allow a quid pro quo, or some kind of consideration for transfer of development rights, that is something we can explore,” Terry agreed. “We need to explore what impact that would be and how SOS would be affected.”

It also would require an amendment to the SOS ordinance, an amendment that many Council members did not consider insurmountable. In an attempt to move the process forward, Council Member Lee Leffingwell moved for a denial of the appeal of the ZAP decision, but directing staff to continue to work with the developer to come up with some exchange or compromise that could offer a possible SOS amendment.

Leffingwell’s motion passed on a vote of 5-0, with Mayor Pro Tem Danny Thomas absent due to illness and Council Member Brewster McCracken off the dais.

©2006 In Fact News, Inc. All rights reserved.

Charter amendment possibilities . . . Former City Council candidate and Travis County Libertarian Party Executive Director Wes Benedict says he is considering whether to attempt to gather signatures to amend the City of Austin’s charter. On the topic, Benedict said only that the amendment would relate to property taxes. If he takes on such a project, Benedict said it would likely be this spring. If the SOS Alliance succeeds in putting amendment propositions on this May’s ballot, Benedict, and anyone else who might want to amend the charter would have to wait until 2008 . . . No rest on the holiday . . . While almost everyone else at City Hall is taking today off, there is one board that will get together despite the MKL Jr. holiday. The Historic Preservation Task Force is meeting at 5:30pm in room 240 at One Texas Center. Board members will discuss recommendations regarding the city’s Historic Preservation Program . . . Special Election . . . Tuesday is Election Day for the special election for District 48 in the Texas House of Representatives. Four people are running to complete the term of Todd Baxter, who resigned the seat in November. They are Democrats Donna Howard and Kathy Rider, Republican Ben Bentzin, and Libertarian Ben Easton. Early voting, which ended Friday, showed a relatively low voter turnout of 4.65 percent of the almost 99,000 registered voters in the district. The largest number of early votes, 1,684, was cast at the Randalls on Bee Cave, with 966 at the Randalls on Research, and 821 at Howson Branch Library. Polls will be open 7am to 7pm on Tuesday . . . KAB Awards . . . The Keep Austin Beautiful Awards Luncheon is planned for 11am on February 8 at the Hyatt Regency Austin. KAB plans to give awards in a number of categories to businesses and individuals in the Austin area. For more information, go to… City seeks panelists . . . Individuals, arts professionals and organizations are invited to submit applications for peer review panelists for the City of Austin’s Cultural Arts Funding Programs. Peer review panelists assist in evaluating applications for city cultural contracts, which are administered by the Cultural Arts Division of the City’s Economic Growth and Redevelopment Services Office. Nominations should include a completed nomination form and the nominee’s resume. The nomination form is available online at Requests for a nomination form may also be sent by fax to 974-6379 or by e-mail to

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