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Council moves on enhanced notification process for land use cases

Monday, April 30, 2012 by Elizabeth Pagano

Construction of a controversial outdoor amphitheater at the PromiseLand West Church has spurred changes to city notification procedures for land use determinations. Those changes took a big step forward at Thursday’s City Council meeting on the insistence of Council Members Laura Morrison and Kathie Tovo, who objected vigorously to the idea of putting it off any longer.


Though neighbors were, and continue to be, very much opposed to construction of the amphitheater, they were not aware that the city had approved it until after the time of appeal had expired. The city is now involved in a lawsuit on the matter.


Mayor Pro Tem Sheryl Cole initially moved to postpone the item to the Council’s next meeting, May 24, meeting, but Morrison and Tovo promptly rejected that idea.


Morrison noted that the item was initially brought to City Council for a hearing on March 8, and then postponed for seven weeks.


“The issues that are now on the table should be Council decisions,” said Morrison.


“All this does is add a notification to folks when they have a right to appeal so that when something’s happening, they will know that it’s happening so they can exercise their right to appeal. And my understanding, I’m just learning, is the recommendations that are coming out from the initial discussion is to actually weaken the existing code,” said Morrison.


Tovo sponsored the resolution in order to correct a gap in the code, which offers an interested party the ability to appeal a use determination, but has no provision for notifying them that such a determination has been made.


“I think it’s really critical that we move forward on this, and I want to point out that the very group that is asking us to postpone it has been involved, and has requested several postponements in the past,” said Tovo.


Tovo said the Real Estate Council of Austin (RECA), which was pushing for the postponement, had previously postponed the hearing at the Planning Commission. She clarified that RECA had met with staff independently, along with three attorneys who routinely represent development cases before council, including one who was working on the case that inspired the proposed change in the first place.


“In the meeting that we held last week, there were some issues raised by the Real Estate Council and other folks that were there. I wouldn’t say that we came to a conclusion at that meeting as far as everyone being on the same page,” said Planning and Development Review’s Jerry Rusthoven. “There are some things they would like to see changed in the staff draft ordinance.”


As an alternative to postponing the case, Cole moved to table the discussion for one hour in order to give the parties a chance to talk further and come to some kind of compromise.


After that hour passed, City Council considered the draft with four last-minute amendments. At least one, which would limit appeals on novel use determination, was crucial to RECA.


“This was one of the critical changes for us. We wanted to prevent two bites of the apple and make sure that once the book was closed on a use determination that there was some finality to that, so we feel very strongly about this change,” said Michael Wilt, who is the director of government relations at RECA.


The amendment would only apply to land uses not already identified in code – such as a combination dancehall and barbershop – and would essentially limit the appeal of their categorization within the code—such as personal services – to the initial categorization. In the case that the BOA ruled on the appeal, or the appeal was not filed in a timely manner, there would be no further right of appeal concerning that use determination.


The three other amendments seemed less significant. One added environmental organizations to the groups that would be notified in cases in which a land use determination was not tied to a specific address.


Another changed language so that the director “may not make a decision on an application that is subject to a use determination,” as opposed to “dependent upon a use determination.”


Assistant City Attorney Brent Lloyd said, of the word change, “I don’t think it really changes the ordinance in any regard whatsoever.”


The final amendment added the word “special” to clarify that the director need only describe any special conditions on the use determination when making a novel use determination.


The amended motion passed on first reading in a vote of 6-0, with Council Member Mike Martinez off the dais. It remains to be seen whether further changes will be made to the ordinance before it passes on third reading.

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