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Waterfront overlay ordinance still controversial

Monday, April 6, 2009 by Bill McCann

A proposal by city staff to exempt Planned Unit Developments (PUDs) and Planned Development Areas (PDAs) from a revised Waterfront Overlay District ordinance drafted at the behest of the City Council drew opposition from Environmental Board members last week.


Opponents of the exemption fear, among other things, that it could result in taller buildings constructed close to Lady Bird Lake than otherwise would be allowed.


But board members split on the best way to deal with the issue. Four members, representing a majority, voted in favor of a motion by John Dupnik to approve the draft ordinance, but to remove the exemption for PUDs and PDAs.


Two other board members, Chair Mary Gay Maxwell and Phil Moncada, voted against approving the ordinance at this time. Instead, they wanted to delay action until the board could get more information on why city staff seeks to exempt PUDs and PDAs.


“Staff has said that this (exemptions) is what we have to do and it would be good to find out why,” Maxwell said.


Maxwell told In Fact Daily that city legal staff believes PUDs and PDAs would be exempt under state law. But she had questions about that interpretation and wanted further clarification. Without vetting the issue before it gets to council, Maxwell said she feared the council would go along with the recommendation of the Law Department.


The draft ordinance currently is scheduled for public hearing at the Planning Commission on April 14 and for a City Council hearing on April 30. At Thursday’s Council meeting, Council Member Lee Leffingwell said the Parks and Recreation Board had not yet made a recommendation on the ordinance and he wanted to make sure that panel had acted before Council holds its hearing. 


Amid concerns about the adequacy of the existing Waterfront Overlay ordinance to protect Lady Bird Lake, last year the council established a Waterfront Overlay Task Force, 15 council-appointed volunteers, to study the issue. (Maxwell was a member of the Watershed Overlay Task Force.) The task force, which presented its report to the council on Dec. 18, concluded that the original 1986 Waterfront Overlay District ordinance had been “significantly weakened” by subsequent changes, particularly a 1999 rewrite designed to put the entire city Land Development Code in “plain English.”  For one thing, building height limits set for various locations, or sub-districts, around the lake were dropped in the rewrite.


The task force made five key recommendations, including that a new Waterfront Overlay District ordinance, containing building height limits set in the 1986 ordinance, should supersede all other city design policies and regulations. There were no exemptions.


At Wednesday’s meeting, Robert Heil of the city Neighborhood Planning and Zoning Department briefed the board on the proposed ordinance and on a proposed seven-member Waterfront Planning Advisory Board, which would be appointed by the council to provide advice on waterfront-related issues. Creation of the advisory board also is a key task force recommendation.


The proposed ordinance includes the major task force recommendations, with the exception one related to giving developers increased entitlements, or “bonuses,” in exchange for providing certain community benefits, Heil said. That provision was not included because the council wants the new Waterfront Planning Advisory Board to address that issue as its first task, Heil said. The draft ordinance also contains language that the new ordinance would supersede other regulations, but PUDs and PDAs would be exempted, he said, because PUDs and PDAs are not subject to the Waterfront Overlay.


Neighborhood activist Jeff Jack, who was a member of the task force and also participated in the early development of the Waterfront Overlay, argued against the exemption. Such an exemption would be a large loophole “that would encourage developers to put together 10 acres for a PUD to avoid the ordinance and get higher heights” for their buildings, he said.

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