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PUD developer’s faux pas leads to ZAP flap

Thursday, March 9, 2006 by

Mitchell questions naming of subcommittee; Baker leaves dais during debate

After a one-month delay for study by a subcommittee, the Zoning and Platting Commission on Tuesday endorsed a request by Momark Development for a Planned Unit Development in southeast Austin off Slaughter Lane. The Goodnight Ranch PUD will cover 750 acres and contain the equivalent of 3,500 living units ranging from row houses to duplexes to larger, single-family homes.

Although the PUD request itself did not prove to be controversial, the ZAP’s decision last month to refer the project to a subcommittee for further study (See In Fact Daily, Feb. 1, 2006) did prove to be a point of contention. As the commission began to take up the case, Chair Betty Baker stunned some of her fellow commissioners with the announcement that she would not be taking part in the discussion.

“A letter was directed to the Mayor, a Council Member and the City Manager and distributed to others, in which through four pages of text the fairness of the chair in sending this case to a committee for review was questioned…and inferences made that the chair did not regard, respect, or appreciate the applicant’s and staff’s time already expended on this case,” she said. “I am not a direct recipient of the letter, although I have one. There is no way the chair will take any action that would reflect negatively on this commission. To further preclude erroneous assumptions, the chair will abstain in any discussion or vote on this case.” Baker then left the dais.

Vice Chairman Joseph Martinez stepped in to take over the meeting and to defend Baker’s actions. “This is the first time in my four years in serving on this commission with Chair Baker that she has taken this extraordinary action to assume responsibility and then further not wanting to vote on the case like this,” he said. “I was the one who pushed for the committee, and letter or no letter I’d do it again in a heartbeat. This was such a significant case that it warranted certainly more time than I thought I could give on the dais. I think we did the right thing collectively, and I think the Chair did the right thing.”

Some of the other commissioners who served on the subcommittee also stood by Baker’s decision to allow time for further study of the PUD. “I think if there was any letter that went out talking about the delay from sending this case to a subcommittee, it was not well-thought out. I know everybody feels like they’re under severe time pressure, but a case of this the magnitude deserved and warranted the time that the subcommittee was allowed to wade through this case and understand it,” said Commissioner Keith Jackson. “I think the chair was more than justified in sending it to the subcommittee.”

Commissioner Clark Hammond was also swift to defend Baker’s judgment and integrity, saying “I’m shocked and disappointed that someone would feel the compulsion to write such a letter attacking Betty Baker, who has dedicated her life to planning here in Austin, Texas.”

After a brief recess, developer Terry Mitchell stepped forward to make his presentation regarding the PUD. “I want to apologize to Madame Chairperson Baker,” he said as Baker watched the proceeding on one of the video monitors in the lobby of City Hall. “I wrote that letter and I was not intending to hurt her feelings. It was asking for direction from the city. I was asking the city ‘is this the direction you want me to go?’ We’re in the service business, and we’re trying to serve,” he explained. “I am very sorry. I make mistakes and I think I made one here, and I apologize.”

Mitchell said that at the time he wrote the letter, he was “surprised and misinformed” about the subcommittee review process. “I apologize for my words, they were not intended to be hurtful, and I will personally apologize to Madam Chairman if given the opportunity. I will personally seek her out and apologize for my ineptness.”

Only one person appeared before the commission to speak against the PUD, which Mitchell described as being in line with the goals of Envision Central Texas. That speaker said he feared the PUD would damage the rural nature of the area, noting that he had moved to the area to get away from the city.

Mitchell said, “What I want to focus on is the Envision Central Texas plan, which if you summarize it in a sentence it is compact urban development with periodic density nodes, where transportation comes together and services come together.” The Goodnight Ranch development would be such a node, allowing for transit alternatives while giving people the opportunity to move within the community as their income levels and housing needs changed.

Commissioners were complimentary of the vision outlined by Mitchell. “We spend a lot of time talking about more density and Envision Central Texas, and then we get one of these projects and I’m like everybody else…I say ‘I’m not sure I like this,’ But as you go through it and visit other communities like this around the country, I think these communities do work,” said Jackson. “I think this one’s well thought out…and having spent hours reviewing it I’m very supportive of it.”

He moved to approve the PUD zoning, with a second from Hammond. “There is some beautiful and developable land in Southeast Austin,” said Hammond, “and it can be developed without a whole lot of impact on our aquifer or creating a whole lot of other environmental problems. I wish more developers would look to this area. I’m really hopeful that this will be a successful development. I think it is a great concept.”

Seven commissioners voted in favor of the PUD zoning. Baker was off the dais and Commissioner Stephanie Hale also chose not to vote, citing the same concerns raised by Baker stemming from Mitchell’s letter.

Board chooses common sense on variance

Red-tagged wall wins Environmental Board recommendation

In a case where city regulations were at odds with common sense, the Environmental Board took the high road last week and recommended a variance for a Bouldin Creek retaining wall that had been built in a critical water quality zone without a proper permit.

City staff told board members that the alternative would be to order the wall torn down, though regulations would then force the landowner to replace it with something very similar. That would be despite the fact that the retaining wall was built to current city standards and appeared to have been a major improvement to the waterway.

The property in question is at 409 W. Monroe St., where the owner, Mayo Pardo, had constructed a rock retaining wall with a pedestrian walkway along Bouldin Creek in 2002 for erosion control, but also to allow the owner to cross the creek in order to walk to work. Over a 10-year period, the owner cleaned all the construction debris and other trash out of the creek bed “down to the natural rock,” then built the wall out of natural stone from the area around the creek. At the time, he said, he didn’t know he needed a permit.

According to the owner’s agent, Phyllis Woodley, the city had red tagged the wall back in 2002 but had received a note from the Watershed Protection and Development Review (WPDR) office shortly thereafter, saying that the tag had been lifted. But a request by the owner to subdivide the lot made getting a variance necessary, which brought the retaining wall into play.

“We are not recommending the variance.” said Theresa Alvelo with WPDR. “While it does provide a significant improvement to the creek bed, it was built without a proper permit and therefore does not meet the findings of fact in this case.”

Fredrick Meyers, a geologist, told board members that his examination of the wall indicated that, both environmentally and geologically, the structure meets all the pertinent design requirements for flood plain protection.

“The structure prevents stream erosion in a mature urban creek,” he said. “It is designed to protect the water quality in the area, and it also protects larger trees. In my opinion, it meets all the design criteria for building in the critical water quality zone,” said Meyers.

City Environmental Officer Pat Murphy said that for purposes of permitting, the fact that the wall was already built didn’t really matter.

“From a process standpoint, we are permitting the wall just as if it hadn’t been built,” he said. “We all agree that it’s nice work and very attractive. The problem is that the city’s Urban Watershed Ordinance doesn’t allow this type of construction.” But he added that ordering it removed at this point might cause more harm than good. “This is not an attempt to punitive. We are just trying to apply an ordinance here.”

Board Member William Curra asked staff if the structure did meet the city’s requirements for stream bank stabilization, and was told that while it appeared to meet the requirements the staff had not had the opportunity to examine it closely enough to make a determination.

Board Member Phil Moncada then moved to recommend granting the variance with the conditions that the land owner agree to maintain the wall, replant some vegetation with native species and allow the city Watershed Protection and Development Review staff to inspect the structure.

The motion passed on an 8-0 vote.

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

More charter talk today . . . The City Council is scheduled to take up consideration of charter amendments that would increase the term of municipal judges, allow council members to run for a third terms without a petition, increase the amount of money a Council candidate can accept from individuals, increase protection for Barton Springs (SOS amendment), and mandate city transactions and other information be posted on the internet (Open Government amendment). Look for a fair amount of debate over some of the amendments . . . PAC money limits unlikely . . . Although he favors raising the limit that individuals may give to Council candidates, Council Member Lee Leffingwell said he would not be in favor of adding restraints in the charter on the money collected by political action committees. However, he said he would be glad to entertain the idea as part of an ordinance. That ordinance would be subject to plenty of public discussion and subject to change but would not need voter approval, he noted. He said he did not want to put anything into the charter that would be subject to legal challenge. “There’s a diverse opinion, nowhere near consensus,” among lawyers on the legality of limits on donations to PACs, he said. Without that consensus, Leffingwell said, he would not be able to support it. As one of three sponsors of the amendment, Leffingwell’s opinion is likely to be critical to the discussion . . . Charter voting in the ETJ . . . Folks who live in Austin’s extraterritorial jurisdiction, who are not allowed to vote on most city charter amendments, will be allowed to vote on the SOS Amendment, according to Assistant City Attorney Jenny Gilchrist. Gilchrist said “We believe based on the Local Government Code provision 42.904—which is bracketed to Austin—requires us to allow voters in the ETJ,” to vote on the SOS amendment because the amendment applies in ETJ. “We do not believe the online access one applies in ETJ.” Those outside the city would not be able to vote on any other proposed amendments either, she said. SOS Executive Director Bill Bunch, writing on behalf of the Clean Water Clean Government PAC, which supports both amendments, is not so sure about that. He wrote in a letter to the city last weekend, “We are researching more carefully the constitutionality of this statute, since it appears to bracket Austin, and may be an inappropriate intrusion on the city’s home rule powers.” Bunch did not yet have an answer on that yesterday. But he argues that the part of the Open Government amendment that calls for development permits to be done online applies in the ETJ as well as within the city. The PAC’s political consultant, Glen Maxey, said Wednesday that it impossible to know at this point which non-city voters will be able to vote on amendments deemed to apply to the ETJ. Rosemary Ybarra, administrative manager for the City Clerk’s Office, told In Fact Daily that the Neighborhood Planning and Zoning Department is working on that very question. She pointed to a new map on her wall that shows Austin’s ETJ areas in Travis, Williamson, Hays and Bastrop counties . . . Aquifer board meets . . . The Barton Springs Edwards Aquifer Conservation District Board is meeting at 6pm at the district headquarters in Manchaca. The board will consider action on a permit filed by Hays WCID No.1 to greatly increase the amount of wastewater it dumps into Bear Creek, which flows into the Edwards Aquifer . . . RECA donates to conservation fund . . . The Hill Country Conservancy on Wednesday accepted a $400,000 check from the Real Estate Council of Austin at RECA’s monthly luncheon at the Four Season Hotel. “We have pledged that we’re going to use every penny to buy land or conservation easements,” said attorney David Armbrust, HCC Board President. “These are areas our children and their children will look back and say ‘I’m glad someone had the foresight to preserve these areas’.” The HCC has set a goal of making at least 50 percent of the land protected through the RECA donation accessible to the public. Former RECA President Jim Knight said RECA’s donation to the HCC should not come as a surprise, since members of the development community have been some of the strongest supporters of the conservation group. “The City of Austin and Travis County have done a fantastic job of raising money for open space, and the citizens have supported that,” he said. “But at some point the taxpayers need to not have the full responsibility for that…and let us as the business community step up and put our money where our mouth is” . . . Access TV contract moves forward . . . Rondella Hawkins of the city’s Telecommunications Office reports that a final two-year contract between the city and Public Access Community Television should be signed this week. PACT replaces Austin Community Access Center, ACAC, as the operator of the city’s public access channels. Hawkins says PACT is making good progress on providing training for producers and programming channels and will televising some alternative music showcases during South by Southwest..

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