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Council says waterfront overlay limits won’t apply to PUDs

Tuesday, June 16, 2009 by Austin Monitor

Council has rejected an attempt to subject PUDs (Planned Unit Developments) along Lady Bird Lake to requirements of the new waterfront overlay—unless there are substantial changes to the proposed PUD. So owners of PUDs that have already been approved need not worry about the new height limitations.

The waterfront overlay will still limit the height of most buildings. And a new advisory board would review PUDs on their way to Council. But the final decision, and responsibility, to set the height of those PUDs will come from the Council, rather than being shut out completely, as some had hoped.

The group Save Town Lake spearheaded an effort to stop height variances allowed by PUDs. Yet Council, after another afternoon executive session on the topic, agreed for a third and final time last week that PUDs fell outside the waterfront overlay ordinance.

Council Member Randi Shade asked repeated questions to clarify the language of the ordinance. She pointed to two sections in the ordinance that seemed to subject PUDs to height restrictions.

“If you were to read this, it seems like this would actually be accomplishing what we voted on a couple of times,” noted Shade.

Assistant City Attorney Brent Lloyd, responding to Shade’s comments, noted that one section that Shade referenced, Part 22, was limited to design standards. In the case where a conflict existed between waterfront overlay and design standards, the waterfront overlay would trump. 

The second section Shade referenced, Section 25, was developed at the request of Council after the last hearing, Lloyd said. The section laid out that the PUD would follow a particular procedural process – for instance – going before the Waterfront Planning Advisory Board – but that it would trump the waterfront overlay.

“The larger question of whether or not, in adopting a PUD, Council would be able to supersede the height requirement or any other requirement of the waterfront overlay,” Lloyd said. “That is a larger legal question. I think that the PUD ordinance includes broad language giving Council legislative authority, as part of the PUD process, to set the requirements that will apply to that property.”

Shade had to do some additional prompting, but the meaning did become clear: Lloyd said the language of the waterfront overlay ordinance was not strong enough to prevent Council from overriding it.

“This language (in the waterfront overlay) alone would not be enough, probably, to prevent the Council from doing that,” Lloyd said. “It’s clearly at your discretion.”

Council Member Mike Martinez, who made the motion for approval on third reading, said it was his clear intention that the Council reserve its power for negotiating over the specifics of a PUD. Council did not give up those rights, although it was committed to following a predictable uniform review process.

As Jeff Jack of Save Town Lake suggested, the real question may come down to the final make-up of the waterfront overlay advisory board and its decisions on incentive bonuses along Lady Bird Lake. Before the vote, he expressed hope that Council would “return to its roots” and maintain limits.

Save Town Lake has threatened the city with lawsuits, and other potential tribulations.

“I think what you’re hearing from various points of view all over the city is that the waterfront is very sacred to our community, and we hope that this action tonight will take us one step closer to reinstating the protections that the community developed in the ’80s that are still valid today,” Jack said to Council in his speech. “It will give us a city with a really wonderful waterfront, protected for future generations and the scenic vistas, the open spaces, will be preserved and make our community a really great River City again.”

Martinez made the motion for approval, with Council Member Laura Morrison offering a second. The motion passed on a vote of 6-0, with Council Member Sheryl Cole absent.

Some other points were clarified during the discussion:

·       All PUDs would go to the Planning Commission for review. NPZD Director Greg Guernsey explained that the PUD was a base zoning district with no particular height associated with it. On the other hand, a developer with a PUD case would outline a desired height. Each PUD application would go to the Planning Commission, which would make a recommendation. Sometimes the commission and the developer might not agree on a recommended height – the developer might want 200 feet and the Planning Commission would want 96 – but because the commission’s recommendation would not be an outright approval or disapproval, it would not trigger a super-majority vote.

·       Amendments would not necessarily trigger additional review for a PUD. Just because an amendment is offered on a PUD, it’s still the same PUD, as long as the amendment is not substantial. Substantial amendments would go through a fuller review process and be compared to the waterfront overlay. Minor amendments can be approved administratively on a particular PUD, without further review.

·       Martinez urged the quick appointment of the waterfront advisory board so that work could begin on crafting a list of community benefits regarding PUDs.

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