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Council repeals Project Duration Ordinance, begins drafting replacement

Friday, March 29, 2013 by Elizabeth Pagano

Facing pressure from the state, the Austin City Council last night repealed the Project Duration Ordinance, retaining only the part of the code that is consistent with state law.


The ruling is effective immediately, and the scramble to craft an ordinance to fill its place has already begun.


City Council voted 5-2 to effectively repeal the Project Duration Ordinance, with Council Members Laura Morrison and Kathie Tovo voting no.


Repealing the ordinance upset a number of Austinites, who fear that the change will throw hard-won developmental regulations out the window. Last week, many activists spoke against the repeal, which might give older projects bound by less-strict environmental regulations the chance to be built once again.


But in December of last year, Texas Attorney General Greg Abbott issued an opinion that the city’s ordinance was not in accordance with state law. This was compounded by legislative pressure from State Rep. Paul Workman, R-Austin, who has already filed three bills targeting the city’s ordinance.


This week, Scott, Douglas, and McConnico attorneys Casey Dobson and Sara Wilder Clark stepped in to help City Council deal with the issue. Council Member Bill Spelman told In Fact Daily that he was glad that the city hired outside counsel so familiar with the laws being addressed.


Spelman said that, after hearing their legal opinions along with all the opinions of the previous week, it became clear to him that the intention of the 1999 state legislature was to set aside the city’s ordinance, which passed in 1997.


“Faced with that, it seemed to me that the simplest and most direct thing to do was to acknowledge that ordinance was no longer applicable or enforceable, and we should just repeal it,” said Spelman.


Spelman said though they could do what the city had done between 1999 and 2008, and just not enforce the project duration ordinance, that ran the risk of the ordinance being revived as it was in 2008.


“We should just get it out of our code and replace it with something that will bear judicial scrutiny,” said Spelman.


That’s exactly what will be taking place over the next month, as city legal and outside counsel put together a new city ordinance that addresses project duration without running afoul of state law. The state law allows for project dormancy, but requires a city ordinance to enforce. that provision.


“I think by the end of April we should be far along in the legal work, such that I’d be optimistic about getting something to the Council for consideration in fairly short order after that,” said Dobson, who said that he believed they would be able to craft an ordinance that would address concerns about what might happen during this interim time, where there is no replacement for the project duration ordinance.


When asked if he was concerned about what might happen to the city in the next month, Spelman said that he wasn’t. He said the most recent amendment of Chapter 245 allows for an ordinance that will “get over any problems we might have in the next month.”


“Basically, it will allow for us to come up with permit expirations,” said Spelman. “We can put the zombies back into the coffin, if any of them get out – that’s the short version.”


Other people are not so optimistic. Austin Sierra Club’s Roy Waley said that he thought the decision was “devastating for Austin.”


“Environmental protection is one of the bedrock values of Austin, and out of our seven-member Council, only two people stood up for those values,” said Waley. “They should have just said, ‘we’re going to enforce our ordinance, and we’re going to come back with something new in 90 days. If you want to sue us, sue us’.”


Save Our Springs Alliance Executive Director Bill Bunch said he was “severely disappointed in the Council taking such a brusque action on a matter of this magnitude.”


“I think we’ll live with it every single day, for decades. I think it’s going to shape Austin’s growth and the future for the far worse – our quality of life, our traffic, our water quality, our neighborhoods – everything that we cherish and that’s special about Austin will suffer,” said Bunch. “The Council just basically signed away our right to control our own future.”


Bunch said that developers will now assert the right to build projects that have been dead for years under weak standards from the 1970s, saying staff had identified 13,000 acres that could be affected by the action.


Bunch also cited a figure that has been circulating around City Hall this week – 1,700 projects that might be allowed to continue now that the city’s ordinance has been repealed. Bunch did acknowledge this would be the large end of an undefined number of projects.


Real Estate Council of Austin President Nikelle Meade was much more pleased with Council’s decision, and downplayed the idea this would open a floodgate for environmentally destructive projects in Austin.


“The intent was to try and bring the city law to a place where it’s consistent with state law, and I think that’s what Council did, so we’re happy with it,” said Meade. “If the new ordinance is consistent with state law, everyone is good with that. We take the position that it doesn’t leave a void. We still need to show progress; it’s not like we have a window to run amok and do evil things.”


Meade said that she didn’t really want to speculate on the number of projects that could be revived because of the Council action.


“It’s not as if every project with an expiration date on it gets revived. They still would have to be able to prove up that there has been progress towards their project,” said Meade. “Some projects have moved on and done other things, some developers have moved on and done other things, so it’s really, really hard to know.”


Meade explained that under state law, there are requirements as to what constitutes “progress” on a project, such as how much has been spent towards completion of the project, and fiscal postings with municipalities. As a result, says Meade, not everyone who had projects expire under project duration will meet those requirements.

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