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Morrison continues to object as Council approves East Block rezoning

Tuesday, June 1, 2010 by Josh Rosenblatt

A little more than month ago City Council voted to approve on first reading the rezoning of the East Block property on West Sixth Street over the objections of Council Member Laura Morrison. Last Thursday Council took up the rezoning application on second and third reading with the exact same result: a near-unanimous vote of approval with Morrison once again demurring over concerns about the amount of affordable housing the property would be bringing to the city.


The applicant, Schlosser Development, was seeking rezoning from downtown mixed use (DMU) to downtown mixed use-central urban re-development (DMU-CURE), a modification that would allow for an increase in height of those parts of the property not in the Capitol View Corridor from 120 feet to 350 feet.


At the April 22 Council meeting, the applicant’s agent, Alice Glasco, said that despite the fact that the rezoning would come with no affordable housing requirements (because her client wasn’t seeking an increase in floor-to-area ratio), the owners were willing to provide affordable housing voluntarily, as part of a private restrictive covenant. (See In Fact Daily, April 27, 2010).


The first part of that covenant states that If the size of the property exceeds a 482,687-square-foot benchmark (which it will), 5 percent of the units, but not less than one unit for every 20,000 square feet in excess of the benchmark, on the site would be dedicated to affordable housing units for families earning up to 80 percent of median family income.


Or, if on-site affordable housing isn’t feasible, Planning and Development Review Director Greg Guensey said, “the owner has the option to donate to the Housing Assistance Fund of the city’s Neighborhood Housing Community Development Department a fee in lieu of calculated at $3 per-square-foot of the gross leasable area built in excess of” the benchmark.” That donation would be no less than $100,000.


Echoing her concerns from last month about the amount of affordable housing the owner would be providing, Morrison asked Guernsey about the city’s power to enforce such a private covenant. Guensey replied that because the covenant was proclaimed only by the owner, it could therefore be “amended only by the owner or then-current owners of the property or portion at the time of such modification or amendment.” The city, in other words, would have no authority to make Schlosser keep its word on affordable housing or make any future owners comply with the covenant.


Glasco told the Council that her company, Alice Glasco Consulting, had asked the city’s Law Department to include the affordable housing agreement in a public restrictive covenant but that they were told that they should instead draft their own private covenant instead.


“Your department cannot be a party to our covenant so we’re willing to do whatever the City Council tells us,” Glasco said. “We’re willing to … we don’t know with whom to partner in our private restrictive covenant. So help us.”


For her part, Morrison gave it a whirl, asking Assistant City Attorney Chad Shaw why it would not be possible from the city’s perspective to include a commitment to affordable housing in a public restrictive covenant.


Shaw replied that there is “a state statute that does not allow us to condition zoning on an affordable housing requirement, unless it is within a voluntary program, such as what we see with the Interim Density Bonus Program, or we see in the VMU incentive program, and this is not one of those programs.”


More than one Council member expressed reservations about the whole line of discussion. Mayor Lee Leffingwell said, “I’m getting very uncomfortable with discussing the conditions of a private restrictive covenant that contains in it items that if we considered as a Council would be considered to be contract zoning and would not be, in my estimation, in accordance with the law.”


After echoing the mayor’s concerns, Council Member Sheryl Cole moved to approve the motion on second and third reading. The motion then passed 5-1, with Morrison voting no and Council Member Bill Spelman off the dais.

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