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Council again puts off decision on repeal of Project Duration Ordinance

Friday, March 22, 2013 by Elizabeth Pagano

After several hours of public testimony, the Austin City Council finally voted at 11:15pm Thursday on the repeal of the Project Duration Ordinance, the development ordinance deemed by the Texas Attorney General, among others, to be contrary to the state’s grandfather law.


However, the vote failed to resolve anything, putting off a decision for one more week to gather more information about the effect of repeal.


With Mayor Lee Leffingwell dissenting, Council members voted 6-1 to postpone the continued discussion to their next meeting, which is next Thursday. After about four hours of public testimony, the Council also opted to close the public hearing, though they reserved the right to call on interested citizens at the meeting.


Council Member Bill Spelman proposed the postponement, hoping that in the next week city staff could gather a small sample of projects, about 20-40 cases, evaluate them under dormancy and describe how the development restrictions would be different. Staff was also asked to identify which of the active projects could proceed as originally planned under dormancy.


“I think that would really give everyone a sense of what really is at risk here and what really is not at risk here. I’ve heard a lot of people in the development community nearly in a panic that this won’t pass. I’ve heard a lot of people in the environmental community nearly in a panic that this will pass. And it seems to me that there’s a real good chance that when we look at those 20 to 40 cases, we’ll scratch our heads and say, ‘Is that really all we’re talking about? Maybe this isn’t such a big deal after all’,” said Council Member Bill Spelman


Assistant City Attorney Brent Lloyd reminded Council that even without duration laws, the city would have some power over development.


“While project duration is a significant tool…. it is not the only tool. And dormancy is not a toothless tool,” said Lloyd. “Should Council choose to follow staff’s recommendation, we would still have a lot of tools available to us.”


Austin’s Project Duration Ordinance was implemented to fill a gap in state law that arose when the legislature inadvertently repealed the “grandfather bill” in 1997. The city’s Project Duration Ordinance states that development projects can be forced to reapply for permitting materials if they haven’t begun their project within five years of their initial filing—or three years in the environmentally sensitive Barton Springs zone. This means that developers cannot keep a project open indefinitely – and must reapply under newer, perhaps stricter, development and environmental regulations.


State law was reestablished in 1999. In December of last year, Attorney General Greg Abbott issued an opinion that stated the city’s ordinance was not in compliance with state law, sending the city scrambling.


Legislative action from State Rep. Paul Workman (R-Austin) could further complicate matters for the city. Workman as already filed three bills targeting the city’s ordinance, including the possibility of giving suing property owners the right to seek punitive damages from the city.


Attorney Nikelle Meade, president of the Real Estate Council of Austin, told City Council that the issue boiled down to whether or not Austin was operating in accordance with state law. She marveled at the fact that there was more than five hours of public testimony ahead, given the fact that the issue was black and white.


“This isn’t about whether or not you like grandfathering, it’s about whether Austin is a law-abiding city,” said Meade.


Local environmentalist Roy Waley disagreed, saying that it wasn’t law until the court said it was. He noted that the state Attorney’s General opinion was only an opinion, and cited previous opinions from County Attorney Tom Nuckols, Assistant City Attorney Brent Lloyd, and Planning and Development Review Director Greg Guernsey that stated Austin’s law was in line with the state’s


“I think this will have devastating consequences if we throw this away,” said Waley. “This is not an emergency.”


“Why don’t we have someone from the city defending us on this? Are we just going to roll over?” said Waley. “We don’t know what the consequences of this are going to be… We think it’s going to be much more than presented.”


Save Our Springs Executive Director Bill Bunch tried to rally the city into banding with other municipalities and counties, and refuted the idea that a “terrible, terrible weak AG opinion that cannot stand the light of law” constituted an emergency.


Bunch also reminded those in attendance that the city attorney was in the employ of the city manager, encouraging City Council to get their own counsel for this matter.


“Y’all don’t have a clue of what this means for the entire city,” said Bunch. “Y’all need to do the right thing, and the fair thing, and not ruin the ability of (citizens) … to rule their own city.


“We don’t understand what is driving you. We don’t understand what city staff is whispering in your ear during closed session,” said Carol Torgrimson, who asked for a public process so that people could understand what, exactly, was going on. “If you get sued in the process of doing this, we’ll back you,” said Torgrimson.


Mary Ingle, First VP of the Austin Neighborhoods Council, asked the city to join forces with the community, other municipalities, and allies in the state legislature, and take their time. Like others that spoke, Ingles worried that the repeal of the ordinance could threaten McMansion, Heritage Tree, Super Duplex, and Remodel ordinances. She also wondered what was driving such speedy action by the Council.


“Perhaps the emergency is fear of litigation. Fear of litigation is not a good way to form public policy,” said Ingle.


“For me, I think the case is pretty clear. The Project Duration Ordinance cannot stand (beside) the state law, and we should do something about it,” said Leffingwell.

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