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Attorney General asked to rule on City of Austin development ordinance

Monday, August 6, 2012 by Michael Kanin

A state representative has requested Attorney General Greg Abbott to rule on the legality of a 1997 City of Austin ordinance that sets an expiration date for development projects.


The ordinance in question offers developers a three-to-five-year window to complete their projects without having to start over from square one and go through the city’s often-laborious permitting process. Even if Abbott’s office disagrees with the city’s interpretation of the law, the city still has the option of continuing to enforce the permit window. However, in so doing, they would risk a lawsuit or action by the state Legislature.


The request for Abbott’s opinion, penned by State Rep. Rene Oliveira (D-Brownsville), who chairs the Texas House of Representatives’ Committee on Land and Resource Management, on behalf of state Rep. Paul Workman (R-Austin), is another volley in the continuing battle between the generally property rights-focused Legislature and Austin, its favorite municipal target.


Workman is the founder of Workman Commercial Construction Company.


Concerns over the 1997 ordinance do not lack for a local echo. “We thought that the…ordinance was only supposed to be a temporary one,” the Real Estate Council of Austin‘s Director of Governmental Relations Michael Wilt told In Fact Daily.


This may be thanks to the fact that this so-called Project Duration Ordinance was intended as a local answer for provisions of the so-called “grandfather bill” that was inadvertently repealed in 1997. The state acted to correct itself in 1999, replacing the repealed section of law with a similar statute.


But between the 1997 repeal and the 1999 reenactment of state legislation, the City of Austin enacted the Project Duration Ordinance – which allows the expiration of permits after a period of either three or five years.


Under current city regulations, developers who applied for construction permits after 1997 must complete their projects within five years to grandfather in any legal conditions that existed at the time of their initial permit application. After five years, developers have to start over and be subject to whatever current development rules apply. Workman, through Oliveira, is challenging this. Oliveira noted that the Legislature took action in 1999 to replace the repealed section of law “in contrast and partly in response to the City of Austin’s Project Duration Ordinance.” 


RECA’s Wilt believes that the City of Austin’s rules were meant to fill the gap between the unintentional repeal of the 1997 law and its 1999 replacement. With both city and state laws still on the books – the result has produced a maze of confusing regulations.


“It hadn’t been a problem until recently, when they started expiring projects under a statute that we thought had gone away,” Wilt said.


Oliveira asked Abbott for his opinion as to whether the city’s rules conflict with the statutory provisions. As chair of the committee, Oliveira has the authority to request an Attorney General’s opinion. Workman does not.


Wilt noted that RECA tried to work with the city to come up with an arrangement about the Project Duration Ordinance. “We’ve gone through several different channels,” he said. “We were just spinning our wheels.”


Workman was out of the state and unavailable for comment by deadline.


Oliveira’s letter was dated June 22, 2012. Attorney General Opinions are generally answered within 180 days.

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