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New project duration rules raising questions

Friday, August 23, 2013 by Michael Kanin

Staff from the city’s Planning and Development Review Department Thursday presented Council members with a set of potential rules to replace Austin‘s former Project Duration Ordinance. If approved, staff hopes the changes – new code for grandfathering property in the city – could return comprehensive city regulation of expired permitting.


However, development advocates expressed concern about whether the new rules, called the Vested Rights Ordinance, differ enough from the former Project Duration Ordinance to pass legal muster.


In an email to Council members, attorney Nikelle Meade, president of the Real Estate Council of Austin, issued a warning. “The draft (ordinance) was just recently released; but after our initial review of it, the members of RECA have serious concerns about it, oppose it, and feel that much more discussion is needed before a new ordinance is adopted.”


She added, “RECA’s executive committee and board are in the process of reviewing the proposed ordinance in depth and analyzing its impact, but the ordinance appears to still be in conflict with state law.”


Meade’s statement refers to trouble that Council members and staff ran into earlier this year. In late March, Council members were forced to repeal the Project Duration Ordinance as part of a simmering debate fueled in large part by both the threat of legislative action from State Rep. Paul Workman (R-Austin) and an opinion by Attorney General Greg Abbott that indicated the ordinance was in violation of state law.


While it existed, the Project Duration Ordinance was used by city officials to replace the state’s grandfather bill that was inadvertently repealed in 1997. After members of the Texas Legislature acted to correct themselves in 1999, the city left its rules in place. The city’s former rules allow the expiration of permits after a period of either three or five years.


Under state pressure, Council members repealed the Project Duration Ordinance in March. Environmental advocates worried that the absence of those rules would lead to the gutting of city regulations such as the Save Our Springs Ordinance.


On Thursday, city Planning and Development Review Director Greg Guernsey tried to illustrate the differences between the old rules and the proposed new ones. He emphasized that the pending Vested Rights Ordinance “distinguishes rights provided under” state law.


Guernsey also indicated that city staff had reviewed similar code in other cities. Assistant City Attorney Brent Lloyd offered Council members the details. “What we found is…there is a fair amount of variety in terms of how different cities in their ordinances have treated the core concepts of expiration — and that is as it relates both to permit expiration, project expiration, how those concepts relate and how they sync up with the state law on dormancy,” he said.


For his part, Mayor Lee Leffingwell wasn’t convinced. “Two things that I would like to hear about are: one, what does this change from the ordinance that was just repealed? And the second is try to discuss how this is in conformance with state law whereas the ordinance that we repealed was not,” he said.


Leffingwell called for an executive session presentation on the matter. Thanks to the very sensitive issues involved, much of the debate may happen behind closed doors.


Third-party legal counsel suggested that Council members could have replacement rules ready as soon as April. Though that clearly did not happen, Guernsey suggested that staff could have brought new rules to Council as early as next week.


However, staff said that they will instead visit the Codes and Ordinances Subcommittee of the Planning Commission on Sept. 17 and the full Planning Commission on Sept. 24. If that schedule holds, the new rules will be back on Oct. 3.

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