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City settles lawsuit with condominium developer over project delays

Monday, December 14, 2009 by Austin Monitor

The City Council has agreed to a settlement with the developers of a proposed condominium project on Barton Springs Road, putting to rest a sometimes contentious battle over redevelopment rules for the project.


The site plan on The Treehouse tract goes back as far as 2002. Plans stalled, a final time, in 2006. According to court records provided by attorney Michael Whellan of Graves Dougherty Hearon & Moody, the city delayed approval of a site plan on the site for months, even years, even though the waterfront overlay ordinance gave the owner the right to build condominiums with only an administrative approval.


In an explanation of the case, Whellan said compatibility standards are triggered when a commercial use is within a set distance from residential uses. Compatibility standards, however, did not apply within the waterfront overlay area  at the time. Subsequently, Council changed the compatibility provisions of the code, which could make The Treehouse case unique and the last of its kind.


The settlement approved Thursday squeezes out some additional compatibility requirements for The Treehouse property while offering the developer the ability to keep the current site plan on file without pulling permits for up to 13.5 years.


Negotiations had led the parties to include an additional three feet above normal height in order to allow for addition of a particular types of solar panels. However, Assistant City Attorney Dana Johnson told the Council that they could not make such an agreement—it would amount to contract zoning.


Mayor Lee Leffingwell was not happy with the change. He said an agreement to cut the height of the building by three feet—thus eliminating three fee of usable space if the developer decided to go ahead with the solar panels anyway—sounded like a disincentive to him.


Whellan said Council Member Laura Morrison had raised questions about the solar panels late in the game with staff and the Bouldin Neighborhood Association. “I got notice last night,” he said, noting that he would have preferred more time to work on the agreement that suddenly had some ragged edges. “And frankly,” he said, addressing Morrison, “ it would have been helpful to have some direct communication from you, Council Member . . . We make it so difficult to do business in the City of Austin and when we don’t have communication, we just make it so much more difficult.”


Council Member Chris Riley questioned why a builder could add a chimney, for example, and not run afoul of city code, but could not add a solar installation. The answer was that no one had thought of that when the code was approved in 1984. While rules could be rewritten to accommodate solar panels, the current rules do not.


And because of the way the settlement was written, the developer could not simply add on the solar panels if and when the city gets around to changing its rules.


Under questioning from City Attorney David Smith, Assistant City Attorney Deborah Thomas came up with a solution. Thomas opined that the agreement could be clarified to say that if at a future date the Council does amend the code, the applicant could take advantage of that.


The final vote to support the settlement was 6-0, with Mayor Pro Tem Mike Martinez away from the city.

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