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Council remains split over Downtown Density Bonus plan

Wednesday, March 27, 2013 by Michael Kanin

Austin City Council members engaged in a wide-ranging discussion Tuesday that covered both the legality of their individual actions with regard to a recent zoning vote and the specifics of how they and staff should move forward with the so-called Downtown Density Bonus Program.


Some Council members still object to a section of a resolution brought forward by Council Members Kathie Tovo and Laura Morrison that aims for priority codification of the density bonus. Another postponement of a resolution that would fast track some version of the Density Bonus Program appears likely.


Morrison, Tovo, and their colleagues are wrestling with how the city should deal with extracting community benefits from developers looking for increased project size in the downtown region. The problem was addressed conceptually as part of the Downtown Plan, initially approved by Council in December, 2011.


However, no portion of the plan has yet to be codified. That leaves Council members and staff with a foggy menu of options when it comes time to bargain over such amenities as affordable housing and increased project density.


Those options include CURE zoning and the Interim Downtown Density Bonus Program; the latter designed as a stop-gap between current rules and the eventual codification of the Downtown Plan. Tovo and Morrison argue that most developers opt for CURE zoning, and therefore avoid the higher affordable housing costs laid out in the interim program.


Last week, Tovo brought forward a resolution that would make codifying the Downtown Density Bonus Program a priority for city staff. “In the interest in providing the kind of consistency and predictability to the development community that we often hear that they would like, stating a guiding principle – stating that this is going to be our guiding principle from here on out – I think makes good sense,” Tovo said at the time.


A vote on Tovo’s resolution was delayed without further debate on Thursday.


The issue also came up during a debate over whether or not Council members would grant CBD-CURE zoning to the Hotel ZaZa project (See In Fact Daily, March 8, 2013). Though a majority of their colleagues voted for the ZaZa CURE, Tovo, Morrison, and Council Member Bill Spelman each carefully declared their right to deny zoning, based on individual conclusions of appropriateness. Morrison and Tovo were specifically concerned about what they saw as too little in the way of affordable housing concessions from the ZaZa project if it was approved under CURE.


Spelman and Morrison returned to the question of that vote at Tuesday’s work session. Spelman asked City Attorney Karen Kennard whether his vote in the ZaZa case was illegal.


Kennard was non-committal. “I don’t know if I can make a determination sitting here now about whether or not you violated the law,” she said. “But I think, generally, you’re given a lot of discretion in how you vote. A violation of the law would only come up if maybe a court ruled against us.”


With ZaZa representative Richard Suttle sitting in the gallery, Tovo later followed with a more definite, targeted answer. “I feel (that) was completely within the bounds of our discretionary zoning authority. I just want to get that on the record for our listening audience in case they are following this avidly and have any concerns about the extent to which we are in compliance with the law,” she said.


Mayor Lee Leffingwell followed immediately by repeating his concerns about that vote. “Well, let me just say that I disagree with all of that and I think passing a resolution is not going to end the discussion,” he said.


Morrison brought the legal discussion back, by implication, to Kennard. “Not only did I feel like it was within the law, I want to make it clear that I had extensive discussion with our city legal and have been advised that it is completely within the law.”

For his part, Council Member Chris Riley returned to concerns that he had about how the fast tracking of the downtown density bonus might affect the rest of the Downtown Plan. Riley remained skeptical about the idea that he and his colleagues, in the absence of a complete economic calibration – an idea theoretically bypassed by a fast track – would be able to avoid “running the risk of applying some kind of arbitrary standard that has not been fully vetted.”


Still, Morrison continued to push for some sort of immediate change to the status quo. She explained to her colleagues that her vision of the ordinance included a suspension of the CURE zoning option to go alongside the codification of several elements of the downtown density bonus program. With CURE suspended, developers would be forced to use the interim density bonus program until the permanent one is in place.


According to staff estimates, it could take between five and eight weeks to bring Morrison’s concept forward. A complete adoption of the downtown density bonus – something that would have to go through a lengthy boards and commissions review – could take up to five months.


City legal staff eventually ruled that Council was not posted for discussion of the CURE suspension portion of Morrison’s suggestion. That makes another postponement likely. 

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