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Commission urges Council to repeal city’s Project Duration Ordinance

Monday, March 18, 2013 by Michael Kanin

Last week, after an extended executive session, the Planning Commission voted to recommend that City Council declare a public emergency to repeal the city’s Project Duration Ordinance and rewrite current vested rights rules so that they are in line with state law. The item will be on this week’s Council agenda.


“I understand that there is quite a bit at stake…. And I understand that there is a concern that we risk losing a power to preserve the city ordinances that protect what matters most to our community. But at the same time, I understand that we have an obligation to fulfill the law, and have respect for the law,” said Commissioner James Nortey.


The commission voted 5-3 in support of the repeal, with Commissioners Danette Chimenti, Jean Stevens, and Myron Smith voting in opposition. All three commissioners who were opposed had previously voted in favor of a postponement. Chair Dave Anderson was absent.


The Project Duration Ordinance was meant to fill a gap in state law created when the legislature inadvertently repealed the “grandfather bill” in 1997. Under the city’s rule, projects can be forced to reapply for permitting materials if they haven’t started within three to five years of initial filing. Austin’s rule has the effect of insuring that a developer cannot keep a project open indefinitely to take advantage of older, perhaps more lenient development and environmental regulations.


State law was reestablished in 1999.


At the commission, many people from the development community spoke in favor of the repeal, citing the stress the ordinance places on smaller projects with tenuous financing, and the uncertainty it creates.


Nikelle Meade, who is the president of the Real Estate Council of Austin, stressed how important the city’s decision will be for the real estate community.


“The real estate industry really cannot function with the sand moving under our feet at all times. We really have to have some certainty,” said Meade. “It’s not about whether or not you like grandfathering. Grandfathering is in the state law. All we’re asking you to do is follow the state law, and make your code consistent with what’s in the state law, which the Texas Constitution requires.”


Several people also spoke in favor of retaining the city’s ordinance, including Save Our Springs Executive Director Bill Bunch. Bunch warned that the repeal of the ordinance could “perpetually grandfather” projects, setting the clock back on the environmental regulations subsequently passed by the city.


Planning Commission action comes as the city faces a significant challenge over the Project Duration Ordinance from the legislature. State Rep. Rene Oliveira (D-Brownsville) requested an attorney general’s opinion over the legality of the measure in June. (See In Fact Daily, Aug. 6, 2012)  Attorney General Greg Abbott delivered that opinion on Dec. 10. It immediately spelled trouble for the city.


In a summary that followed a handful of paragraphs of law review, Abbott was blunt. “A court would likely conclude that the Ordinance provisions about which you ask are void because they conflict with chapter 245 of the Local Government Code,” he wrote.


Nortey said that, given the Attorney’s General opinion, it was a “no-brainer” that the appropriate action was for the city to ensure that city law is in complete compliance with the state law. 


“My concern is that with a delay, we risk additional harm to the city in the form of either a legal dispute or in the form of state action from the legislature,” said Nortey.


The Attorney’s General opinion has already produced some amount of scrambling from Council members. Though opinions from attorneys general do not carry the same weight as a judge’s ruling, parties tend to give them significant deference. In Austin’s case, Council members immediately delayed what might well have been the disapproval of the Shady Hollow Garden Townhomes (See In Fact Daily, Feb. 5, 2013).


Council members came back two weeks later and subsequently approved a deal through a managed growth agreement that would allow Shady Hollow to move forward. “I really, really, really don’t like this managed growth agreement,”  Council Member Bill Spelman said at the time, adding “it seems to me that no valid public purpose would be served by tilting at this particular windmill.” (See In Fact Daily, Feb. 19, 2013.)


Another long-debated Austin project could also be affected by Planning Commissioners’ actions. In September, the owners of the One World Theatre sued after their expansion plans were stopped by the city. In the suit, theatre representation argues that One World’s “new site plan application is entitled to be reviewed and permitted under only those rules, regulations, ordinances, and requirements in effect when the project was initiated on July 15, 1983.”


If the court agrees – and Abbott’s opinion suggests that it might – then One World would be allowed to develop its project without the restrictions included in the city’s Save Our Springs Ordinance.


Legislative action from State Rep. Paul Workman (R-Austin) could further complicate matters for the city. Workman filed three bills directly aimed at the city’s Project Duration Ordinance. In a statement released after a request from In Fact Daily, Workman wrote that “the intent of Chapter 245, Local Government Code, is to allow a property owner that is constructing a building or a series of buildings to comply with the development rules in place at the time they start a project and not be subject to changing rules during the course of the project. These bills seek to clarify Chapter 245 to make clear to municipalities what their responsibilities are with regard to this chapter.”


The new legislation would also offer suing property owners the right to seek putative damages from municipalities over the matter.

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