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Planning Commissioners chide staff over Western Oaks site plan

Tuesday, February 9, 2010 by Kimberly Reeves

Members of the Planning Commission expressed clear displeasure with city staff last week when they could not produce answers about how a South Austin project’s site plan could be excluded from the restriction of site plan duration.

The story of the Western Oaks retail center site, in the 4600 block of William Cannon Boulevard, is a long and complicated one. The developer, represented at Planning Commission by Paul Linehan, is requesting a four-year extension on the project’s site plan. That would be in addition to a one-year extension, by administrative approval, that was granted last month.

The original plan for the 15-acre site, which included rezoning to LR with a restrictive covenant, moved through the city system back in 1976. In 1984, portions of the site were rezoned, with a different restrictive covenant and, eventually, a conditional use permit. While the proposed buildings were deemed to be a new project, the city agreed to allow development to proceed under the 1977 standards.

Project duration standards, which limit how long a site plan can be used, apply to projects that have been filed with the city after 1997, planner Lynda Courtney explained to the commission. Site plans filed after 1997 are held to one of two standards: In the drinking water protection zone, the duration of a site plan is three years. In the desired development zone, a site plan can only be in place five years.

To date, AVG-Austin has managed to put a 24-Hour Fitness on the ground, as well as a Panera Bread. Architecture plans are in place for two one-story office buildings. Infrastructure is in place for additional construction on site.

“It seems to me that there just is a tremendous amount of time involved in rolling this project through its phases,” Commissioner Saundra Kirk noted. “It’s unbelievable to me, almost, that it would take this amount of time to do a complete phase out of a project.”

Linehan blamed the weak economy for the problems getting construction on the ground. Licensing agreements and traffic calming devices also had eaten up time. Attorney Jeff Howard, who was also on hand, noted that the evolving plan for the project had rolled back impervious cover from 65 percent to 44.8 percent.

The paperwork that accompanied the case would indicate the timing issue was settled, and the project was clearly grandfathered, but commissioners weren’t convinced, even going so far as to ask the applicant whether the site plan should be scrapped entirely in order to get something on the ground and complete.

Commissioner Dave Anderson, in rather pointed comments, wanted a more definitive answer on why the project was grandfathered, which meant it would not have to meet the rigor of increased environmental regulations. If the Western Oaks project came into the system today, as a new project, it would already have hit its cap on impervious cover, since the existing impervious cover is now at 45 percent.

“I’m hoping I can get a more clear answer tonight,” Anderson said. “What I’m asking you, staff, is it the city’s position that this project can be grandfathered?”

The answer from Courtney and Assistant City Attorney Sabine Romero was yes, and no. Yes, new regulations were waived on the property in an agreement between the city and owner. No, it was not the typical way a variance is granted.

Commissioner Kathryne Tovo noted her concern, and it was clearly a concern of others on the commission, that the city had given conflicting opinions. One member of staff had deemed the project as “new.” Someone else on staff had authored a letter of accommodation that clearly waived that determination.

So how obligated was the commission to follow the agreement in that letter of accommodation? Anderson asked city staff.

Backup on the site plan also included what appeared to be conflicting correspondence, Tovo said, pointing out that the letter of accommodation appeared to apply to an expired site plan, and not the new one.

Courtney confirmed the existence of multiple site plans was part of the confusion in the case, but that the site plan referenced in the letter of accommodation applied to multiple site plans. A site plan filed in 2002 as a placeholder during negotiations was identical to the site plan that was eventually approved, Courtney said.

After circling the subject and the timelines a number of times, frustrated commissioners agreed to postpone a decision on the issue, one more time, with the intention of bringing in additional city staff to answer questions. Howard suggested that assistant city attorney Debra Thomas also be included in the discussion.

The exception on the site plan was based upon the deliberations of what is known as the Chapter 245 committee. Commissioners requested that Tammie Williamson, who signed off on the exception, be on hand on Feb. 9 to answer questions.

“I want to say to the applicants, on the behalf of the commissioners, it’s really has been a disappointment to me that the appropriate staff couldn’t be here tonight and couldn’t answer these questions we have,” Commissioner Mandy Dealey said.

Chair Dave Sullivan said some of the burden fell not only to staff but also to commissioners. This was not the first time the Western Oaks case had made it to Planning Commission. Knowing the complexity of the topic at hand, commissioners should have requested the presence of additional staff.

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