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Elizabeth Pagano is the editor of the Austin Monitor.
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Planning Commission tree vote shocks developers
Thursday, October 13, 2011 by Elizabeth Pagano
The Planning Commission shocked the development community Tuesday night when they voted 5-4 to deny a variance that would allow the removal of a heritage tree for a proposed high rise at Third and Bowie downtown.
Attorney David Armbrust, who was not involved in the case but has worked on behalf of developers for the past 35 years, told In Fact Daily Wednesday that the case is “one of the most significant votes I’ve ever seen because if you apply that vote as a precedent citywide it’s going to have an incredible impact on properties all over the city —whether they’re redeveloping or greenfields or whatever. In essence it’s saying you can’t remove a heritage tree.”
Although it was clear the commission was having trouble making a decision before Tuesday night, commissioners’ rejection of a nearly $70,000 mitigation payment was obviously not something the Endeavor Real Estate Group had ever considered. The ordinance required only a $19,200 payment or 300 percent of the value of the tree.
“We really have no plans. This is not an outcome that we really spent any time on,” Jamil Alam, a principal with Endeavor Real Estate Group, told In Fact Daily. “The project is not economically viable with the plan that designs around the tree, so we’re just going to have to visit with the land owner and decide what the next steps are.”
The Planning Commission has the final say on the matter, according to code. The board would require new evidence in the case for reconsideration, and six votes to amend or rescind the ruling. The applicants cannot apply for the variance again for one year. They could consider going to court over the matter but it is not clear that they would have a good argument.
In the past, developers have taken their complaints about the City of Austin’s regulation to the Texas Legislature, which houses numerous members who are more than happy to file bills aimed at undercutting the city’s policies.
Earl Broussard, president of TGB Partners, presented a new mitigation plan of about $70,000. Developers proposed 200 inches of trees be planted, $20,000 dedicated to maintenance of heritage trees in the nearby Duncan Park, and $10,000 towards the hiring of two interns to identify heritage trees in the Central Business District.
This was beside the point for Chair David Sullivan.
“My problem is that the way that the ordinance is written, I believe that there is a reasonable use if we turn down the variance. So I have to support the ordinance, because that is what I believe I have to do in order to follow the law. But I also think that we have to change the ordinance,” said Sullivan.
Currently, the Environmental Board is working on just that, having formed a subcommittee to examine the ordinance following their hearing of this case.
The Planning Commission was divided over the variance. Commissioners Dave Anderson, Richard Hatfield, Alfonso Hernandez, and Saundra Kirk voted in favor of the variance. Sullivan and Commissioners Danette Chimenti, Mandy Dealy, Jean Stevens, and Donna Tiemann voted against.
“You could get the variance approved if it prevented a reasonable use. My interpretation of that doesn’t mean one particular reasonable use. It means any reasonable use,” said Sullivan.
At the request of the board, developers presented alternate plans for the site which would spare the tree, and scale the height of the building back to 342.5 feet (from an originally proposed 385.5 feet) and reduce the number of units from 294 to 250.
Board of Adjustment Chair Jeff Jack, who was sitting on the commission in an ex officio capacity, was quick to point out that even the scaled-back plans were greater than what would have been granted without CURE zoning.
“The developer has reasonable use. He was going to make a much larger project because he was granted CURE. I think that when we grant CURE, or the SOS Exception ordinance, it doesn’t mean we have to give up the other ordinances that protect and define our community,” said Jack.
City Planner and Downtown Resident Jim Duncan, spoke against the variance, saying, “It is not unusual or unreal in this town for a building’s design to accommodate something that is important to the citizens of Austin, like heritage trees and capitol views. When we start ignoring that, we are in real trouble.”
Kirk saw a different trouble for the city, which she expounded upon before casting her vote.
“I think that we have a culture in Austin that is getting to the point where we are almost flippantly in a state of disregard towards development. Because we want what we want, and we have our values, and we want to align ourselves so that the development is the bad thing and what we want is the good thing,” said Kirk.
“A lot of the conversation has been that we want to encourage development and density downtown so that we can preserve our neighborhoods as much as possible, and these other precious areas of the city. And yet, we put attitude and restrictions on developments that appear to be very reasonable,” said Kirk.
Kirk went on to say that, while it was a wonderful tree, she was not convinced that it would survive even if the building plans accommodated it.
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