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Council members OK Lady Bird Lake area PUD on first reading only

Friday, August 9, 2013 by Elizabeth Pagano

After about two hours of testimony, City Council approved the Planned Unit Development at 211 South Lamar on a vote of 5-2 last night. Council Members Kathie Tovo and Laura Morrison, unsurprisingly, voted against the PUD that sits at the foot of the Pfluger Bridge across Lady Bird Lake.

The project will be a 96-foot tall mixed apartment and commercial development built on the current site of a Taco Cabana Restaurant, leading some to call it the “Taco PUD.”


In opposing the motion Morrison said it was important to support the waterfront overlay and the community vision for the area.


Council Member Chris Riley, who made the motion for PUD zoning, said he had studied the area and found an “overriding emphasis on superior design,” and felt this project embodied that value. He said it was most important to have an inviting street level that embraced the public – something that would not be achieved under the current zoning.


The Post Paggi Group sought PUD zoning for the 211 South Lamar lot. Behind the lot is the historic Paggi House Restaurant, which will remain standing. The zoning change will allow developers to build to 96 feet instead of the current 60-foot limit.


In return, developers are offering a number of community benefits that would not be part of the existing zoning. These benefits include ground-floor retail, extended sidewalk improvements, tree preservation, three-star Green Building compliance, enhanced water quality controls, rent-free space to the city’s Parks and Recreation Department and money or space dedicated to the city’s affordable housing.


More than $400,000 will be contributed towards the city’s affordable housing. That figure is based on the “bonus” area that is afforded by the zoning. Though City Council approved that interpretation of the ordinance in June, currently the ordinance covers the entire building. Planning and Development Review’s Jerry Rusthoven explained that the PUD could modify that requirement.


Assistant County Attorney Tom Nuckols spoke on behalf of the Barton Hills Neighborhood Association, saying it would violate the PUD Ordinance as well as state law.


Nuckols said that City Council can only waive requirements of the PUD ordinance if waiving that requirement results in the objective of that part of the code being substantially achieved. He argued that added height and reduced contributions to affordable housing were not substantially the same, and it would be hard to prove in court that they were.


In terms of state law, Nuckols explained that the only entity allowed to deviate from code on an ad hoc basis was the Board of Adjustment who, as a quasi-judicial body, cannot be lobbied.


Rusthoven clarified that determining what “substantially achieved” meant was entirely at City Council’s discretion.


Faced with Morrison’s questioning of how $438,924 paid in an affordable housing fee-in-lieu could substantially achieve what could be $1.2 million in fees-in-lieu, Council Member Bill Spelman suggested a delay.


Spelman said the Council would be on firmer legal ground once the new codification of the affordability portion of the PUD ordinance (which calculates the fee on “bonus area”) was ready – which will be sometime in September. Winstead PC Attorney Steve Drenner requested the case resume at the same time the revised code returned to Council. Third reading of the ordinance is set on Oct. 3, the day Council is expected to codify the PUD affordability policy.


The project has garnered a healthy assortment of opponents on its way to City Council, including the Zilker Neighborhood Association, Bouldin Creek Neighborhood Association,  Barton Hills Neighborhood Association, Save Town Lake, South River City Citizens Neighborhood Association, the (adjacent) Bridges On The Park  Condominium Association, and the board of the nearby Zachary Scott Theater.


Both the Environmental Board and Waterfront Planning Advisory Board voted against recommending the zoning change. The Planning Commission voted in favor of the change.


Robert Wilson spoke on behalf of the Bridges on the Park Condominium Association. He told Council that, after a year-and-a-half of talks, they had come to a neutral position on the project, saying they had come to a number of agreements with the developer at the midnight hour. He said that if those agreements were reached before second and third readings, they would withdraw their opposition entirely.


Zilker Neighborhood’s Lorraine Atherton spoke against the development, saying the proposal “looks like a refugee from the 90s” when compared to other vertical mixed use projects on South Lamar. She said she was unconcerned by the threat to develop under existing zoning, citing multiple reasons why she felt VMU standards were superior to the proposed PUD.


Drenner said that developers could build an apartment complex today without meeting any of the vertical mixed use requirements. He presented images of that hypothetical project – a 60-foot tall apartment complex with a u-shape facing the water.


He said that the project would either be built as a PUD or as a multifamily project under the current CS zoning, which does not require contributions to affordable housing.


“This would have been just an apartment complex. It wouldn’t have retail on the ground floor,” said Drenner, who explained that without more height, that addition would be cost-prohibitive.


He said, with a “good deal of trepidation,” they opted to try for the PUD zoning. This was due to several factors, including a “half-baked” waterfront overlay ordinance that lacks density bonuses, more flexibility, and the ability to confirm the affordability requirement for the project.


“I think we really have a special opportunity to create something for people who enjoy the lake,” said Drenner.


Attorney John Donisi, also with the Winstead firm, spoke to the Paggi House (which shares an owner with 211 South Lamar,) and how the new development would help integrate the historic landmark with its surroundings. He noted that, while they were under no obligation in regards to building next to the restaurant, they felt the PUD was an opportunity to improve on the current conditions by increasing pedestrian traffic.


Pierre Riou, who is an attorney who lives in the Zilker Neighborhood, said there was no provision that allowed Council to approve PUD zoning for a lot under 10 acres.


“You can’t get around the fact that this would be spot zoning,” said Riou.


Riou then led Council Chambers in a rewrite of “This Land is Your Land” called “This Lake is Still Scenic for You and Me.”


Council Member Mike Martinez said that he struggled with the case, before ultimately voting in favor of the zoning change.


“I love Taco Cabana as much as everyone else, but I don’t think it’s a panacea of urban planning,” said Martinez.

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