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Council could vote on waterfront overlay ordinance before elections

Wednesday, April 22, 2009 by Kimberly Reeves

A last-minute push to get the waterfront overlay ordinance to Council before the May elections has raised some questions on whether the vote might be a bit more political than some people expect.

While Council wanted a thorough review, the only commission actually required to vote on the waterfront overlay ordinance is the Planning Commission. And at last week’s meeting, the commission initially voted to delay its action until May. After the initial vote, new Commissioner Gerardo Castillo approached Chair David Sullivan and said he had second thoughts about delaying the vote, especially given that the task force had eight months of input.

“It seemed to me that we had had plenty of stakeholder input,” Castillo said. “There had been eight months of input from almost every major significant stakeholder involved in the process, so it seemed important to meet the timeline the staff presented on the ordinance, rather than postpone it to May.”

Castillo approached Sullivan and asked that the motion be rescinded and a new vote cast to move the hearing to April 28. So as the last action of the night, the commission recast its vote, making it possible for the waterfront overlay ordinance to be heard on April 30. The Council meeting of May 7 has been canceled. The city election is on May 9.

How these motions happened – especially in the midst of a heated Council race – is certainly fodder for discussion. Castillo is an appointee of Council Member Mike Martinez. Martinez is a close ally of Lee Leffingwell. So In Fact Daily raised the question with Martinez: Had he called Castillo during the Planning Commission meeting to urge him to reconsider the overlay vote and get it passed?

No, Martinez said. He talked to Castillo a couple of days before the meeting. It was then that the two talked about the fact the waterfront overlay might not get passed.

“I called my appointee and asked him what they were doing. He said they were considering a postponement, that folks were saying they needed more time,” Martinez said. “So I talked to him and said, ‘Look, here’s the amount of time we’ve been working on it. These are all the folks that have been involved from Day 1, and our intent was for this Council that started the whole process to really make any final decisions in adopting the overlay. While I could understand folks needing more time, what I didn’t want was for things to drag out in perpetuity with folks saying they needed more time.”

It’s not uncommon for Council members to push through ordinances and actions in deference to a departing colleague. Council Member Betty Dunkerley, for instance, made a couple of key votes at her last Council meeting on items she had championed, including an accessibility bill.

On the other hand, a motion to reconsider the timing of an ordinance is still somewhat rare. But Sullivan admitted he especially was sensitive to the timing of the vote, given Council’s expressed displeasure last year that Planning Commission appeared to drag its feet on a proposed billboard ordinance.

Sullivan still has some questions on the ordinance, such as whether the height limits are absolute, or if the new waterfront overlay task force could give some type of minimal variance – say an extra 5 feet – in exchange for a significant community benefit.

Minimal variances were the key reason the Residential Design and Compatibility Commission was created. Under the current ordinance, the height limits set out for each sub-district is absolute. The only variance would be between the allowance of the zoning category and the maximum proposed height.

So if you had a 60-foot height limit in a 96-foot zoning sub-district, that variance could be granted in exchange for some community benefit. And there are still a handful of properties which were zoned “L,” giving them a 200-foot height limit, which is far in excess of the preferred maximum of 96 feet.

Two issues arise from this interpretation of the past ordinances: For one thing, Sullivan is uncertain where these height limits come from and whether there was some type of rationale that would make 60 feet make more sense than 96 feet. While neighborhood activist Jeff Jack has insisted the 96-foot height limit always was the intention of the original 1986 ordinance, Sullivan can find nothing in the original ordinance – or the rewritten ordinance – to suggest that was the case.

These specified height limits – suggested in the past and possibly open to variance – are now ironclad limits on development along Lady Bird Lady.

Also, should the remaining “L” properties be grandfathered? According to the new ordinance, the waterfront overlay ordinance would trump all prior zoning. So, under the interpretation of the proposed ordinance, all “L” zoning would be rolled back. But if the height was never specified in the original ordinance, should the handful of remaining properties be grandfathered?

The only exception on height limits would be the filing of a planned unit development, PUD, or planned development agreement, or PDA. Those are a different type of zoning animal, one that falls outside the regular zoning category and gives almost unbridled freedom to a developer to create a project with height and density, as long as there is some perceived benefit to the overall project.

Jack and Danette Chimenti, who served on the original task force, are both strongly opposed to putting PUDs and PDAs aside. If that’s going to be the case, anyone who wants height will simply file a PUD, Chimenti told ZAP last night. PUDs are intended to be at least 10 acres in size, but Council can make exceptions.

As to getting the ordinance to Council, the Planning Commission and the Parks and Recreation Board will both hear the ordinance next Tuesday night. ZAP did not take a vote last night because three members – Chair Betty Baker, Keith Jackson and Teresa Rabago – were absent from the meeting.

Technically, ZAP’s approval was not necessary and the commission will have no hearing before the Council meeting. Most of the waterfront area comes under the purview of the Planning Commission, but some parts on the east and west ends are under ZAP.

One question will be whether a majority of Council members want to vote on the waterfront overlay without ZAP approval and how activists’ arguments may impact the candidates’ decisions in light of the upcoming election. Another question that may arise is whether lakefront property owners should have been notified of the April 30 hearing. City rules do not require such notification because most ordinances affect all property within the city. Staff has been working on the required notices for newspaper advertising and to neighborhood associations.

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