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Council postpones action on Project Duration Ordinance to March 21

Friday, March 1, 2013 by Michael Kanin

Austin City Council members Thursday delayed for three weeks a vote on a sweeping change in the city’s Project Duration Ordinance. The break will allow members of the city’s Planning Commission to review the move, and hold a public hearing on it, before it comes back before Council members on March 21.


As currently written, the Project Duration Ordinance forces the expiration of projects at between three and five years after its initial permit date. A recent opinion from Attorney General Greg Abbott said that the ordinance conflicts with state law.


It remains unclear whether the pause will bring an outcome that will satisfy the numerous environmental advocates now lining up against a change that would make the city comply with Abbott’s opinion. Still, Save Our Springs Alliance executive director Bill Bunch, argued for the delay.


“What you have on your table would essentially give away, literally for decades…control over matters that address water quality, growth management, and public health and safety,” Bunch told Council members.


The ordinance in question dates back to an odd gap in state regulatory action. In 1997, Texas legislators inadvertently repealed the state’s grandfathering bill. By the time they corrected themselves in 1999, the City of Austin had written its own rules with the Project Duration Ordinance. (See In Fact Daily, Aug. 6, 2012.)


Abbott’s ruling was issued in December in response to a request from State Rep. Rene Oliveira (D-Brownsville) on behalf of State Rep. Paul Workman (R-Austin). In his opinion, Abbott writes that city rules included in the project duration ordinance cause “a project to expire sooner than it would under the provisions of” the state’s grandfather protections. (See In Fact Daily, Feb. 19, 2013.)


Council members had to face the issue when two managed growth agreements appeared for approval in early February. When approved, a managed growth agreement can allow a developer to extend project rules available at the time of initial planning. They can also be used to navigate around the expirations in the Project Duration Ordinance. (See In Fact Daily, Feb. 5, 2013.)


The Abbott opinion put city officials in a tough position. Though it does not carry the force of law, it should be seen as a warning shot. Indeed, Planning and Development Review Director Greg Guernsey brought forward Thursday’s item with an emergency tag – a feature that would allow it to go in to affect within 10 days.


Without the change, legislation overturning the current city ordinance is a distinct possibility. Time is a factor because next Friday is the deadline for filing bills. However, by custom members of the Senate waive that rule so their members can file legislation at any time.


Bunch and three other attorneys – Environmental Board member Marisa Perales, Brad Rockwell, and Doug Young – signed a letter objecting to the emergency status. “Neither the ordinance nor the back-up have provided evidence of any such emergency,” they wrote. “We see no significant harm that would flow from a postponement of a few weeks; conversely, the consequences of acting hastily could be severe and far reaching in both time and harm done to Austin’s public health, safety and welfare. The actual results of the proposed action have not, as far as we know, been evaluated by staff or interested stakeholders.”


Guernsey, in pushing for quick adoption of the ordinance changes, insisted that the repeal of language that contradicts Abbott’s opinion and state law would only be the start of a process to replace the Project Duration Ordinance with something new. Besides, he argued, if the city didn’t act, it could face legal or legislative action.


However, Guernsey also conceded that the number of projects that fall might be subject to the project duration ordinance were not numerous.


With that in his pocket, Council Member Bill Spelman could see no reason not to allow a brief delay. “It seems to me…that a delay in our consideration of the best response to the Attorney General opinion of a couple weeks or a month is probably not going be too (detrimental) to too many projects,” he said.


Leffingwell urged his colleagues to move forward with the changes so staff could start work on a new set of rules. “We’re going to come back here on the 21st and do what we know we have to do today,” he said. “In the meantime, the process of crafting a new ordinance could have already been underway, and that’s the one that needs to have the public process.”

In the end, only Leffingwell and Council Member Mike Martinez voted against a delay.

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