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Council OKs managed growth agreement In Barton Springs zone

Tuesday, February 19, 2013 by Michael Kanin

Apparently backed up against a legal cliff, Council members voted last week to move forward with a managed growth agreement for the Shady Hollow Garden Townhomes project in far southwest Austin.


Managed growth agreements can be used to extend the plats of large or long-term projects that offer the city “special benefits.” Once employed, they preserve regulations in place at the time of a project’s original platting.


The Shady Hollow project was initially approved in 2008. With Council’s okay, project developers can now build the project under grandfathered regulations that will allow them to bypass the Heritage Tree Ordinance and impervious cover restrictions that might otherwise be imposed on properties in the Barton Springs aquifer recharge zone.


Still, five Council members felt that the potential of a broad-strokes legal action – one that might challenge the city’s ability to impose strict development limitations – was more dangerous than the harm that might be caused by the development itself.


“I really, really, really don’t like this managed growth agreement,” Council Member Bill Spelman said, adding “it seems to me that no valid public purpose would be served by tilting at this particular windmill.”


Spelman moved approval. Council Members Mike Martinez and Chris Riley joined him, along with Mayor Lee Leffingwell, and Mayor Pro Tem Sheryl Cole.


An opinion from Attorney General Greg Abbott lurked behind Council discussion. In it, Abbott restricts Council’s ability to, as Council Member Bill Spelman put it, “expire somebody’s claim to grandfathering.”


The City of Austin‘s Project Duration Ordinance can be used to force the expiration of dormant development projects. In a December 2012 opinion that could have wide-ranging implications, Abbott ruled that “a court would likely conclude” that the rule conflicts with state law. 


Abbot’s opinion states that Austin’s Project Duration Ordinance conflicts with existing state law (Chapter 245 of the Local Government Code) in that it “causes a project to expire sooner than it would under the provisions of section 245.”  Abbott ruled that in the case of such a conflict, the state code supersedes the city ordinance, rendering key portions regarding a project’s expiration date void. In such cases, the ruling said, state law trumps local regulations. 


The opinion was requested by State Rep. René Oliveira (D-Brownsville), who is chair of the House Committee on Land and Resource Management.


Though Assistant City Attorney Brent Lloyd was less-than definitive in how the opinion might be used in litigation, it was clear that Council members believed that it would be a significant obstacle.


Further, no representative from Shady Hollow’s developers, Madison City Homes, participated in Council discussion in the matter. That left Council members somewhat limited in actions they could take. “Certainly you can negotiate the terms of an MGA, but there is no one here to negotiate with,” said Leffingwell.


Council Member Kathie Tovo still tried to introduce three amendments that sought to claw back some of the regulatory ground that the city had lost in the matter. Leffingwell stepped in.


“Any changes to the regulations that existed at the time the…site plan was filed and commenced – anything additional to that would have the effect of not being able to pass this MGA today,” Leffingwell offered.


Lloyd said that changes, such as those offered by Tovo, would “fundamentally change the purpose of the MGA.”


Council Member Laura Morrison also seemed ready to challenge developers. Indeed, she and Leffingwell got in to a tense exchange. “If we were to approve something with…some element of an improvement, that would be our only opportunity as a Council to have a say in something different than what is being brought to us,” she offered.


Leffingwell shot back. “I’m not questioning the appropriateness,” he said. “Certainly, it’s appropriate to take that step. It’s also appropriate to turn down the MGA. My argument is that those two things are the same.”


“Yeah,” said Morrison, “I understand that that’s your opinion. And my opinion is that’s not necessarily so.”

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