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Council moves forward on codifying Development Rights Ordinance

Monday, September 23, 2013 by Elizabeth Pagano

After a slight delay, Austin City Council members will soon get their chance to codify a new Vested Development Rights Ordinance, replacing the repealed Project Duration Ordinance relating to which rules must be followed in developing property.


After Texas Attorney General Greg Abbott issued an opinion saying the city’s ordinance was in conflict with state law, Council repealed the ordinance in March. At that time, they asked staff to move quickly to get new regulations on the books.


After consulting with legal counsel and seeing how other municipalities handled project expiration, staff concluded that they could implement reasonable expiration dates that limit how long a project can remain undeveloped before the construction will have to comply with current code.


“I don’t think that everyone is going to be happy with this ordinance,” said Planning and Development Review Director Greg Guernsey. “There are provisions that I know the real estate council may not be totally thrilled with, and the environmental community may not be totally thrilled with everything.”


But, after working with both city legal and outside counsel, Guernsey said they had struck upon something that they could work with that was not in conflict with state law.


Attorney Peter Cesaro with Graves Daugherty, who is also with the Real Estate Council of Austin, encouraged the Planning Commission to determine how, exactly, the new regulations differed from the previous, repealed laws. Cesaro pointed specifically to the provision that says when a permit expires, a project expires.


That idea is likely to be taken up during the Planning Commission’s executive session on Tuesday.


The commission’s Codes and Ordinances Committee voted 5-0 to move the amendments forward without a recommendation, and requested an executive session at the Planning Commission meeting.


Both the new and the old ordinance relate to how the city handles vested rights claims. These are claims that owners or developers have which would allow them to develop land under previous city regulations, as opposed to current standards.


Because the process for reviewing vested rights claims is currently not codified, the process is entirely administrative. The new code tries to establish clearer conditions for vesting rights.


“In the past, it was a relatively secretive process,” said Guernsey. “I would end up saying – or my predecessors would end up saying – ‘No, you’re not vested,’ but we wouldn’t really go into a lot of detail.”


“In this process, we’re talking about being a little bit more open and candid about what criteria we look at,” said Guernsey. The new rules require a written decision from the director explaining the basis for a vested rights determination.


The new regulations lay out a more explicit framework for looking at whether the project has changed and how much progress has been made, which are both factors in determining whether or not a project has expired.


Under the new rules, developers could also request an extension from the Planning Commission and City Council.


The amendments create consent agreements which would allow Council to weigh in on projects that were debatably grandfathered, instead of taking the matter to court. Consent agreements could also be used when projects that are supported by the neighborhood and offer better environmental controls than what are grandfathered are proposed.


“It’s a project where I know this project is better. I have neighborhood support… but I can’t say it’s grandfathered because it’s a different project,” said Guernsey. “This ordinance would actually put in a provision where I could make a recommendation to Council saying, ‘Could you consider this consent agreement, because I think it’s worthy?’”


Guernsey added that, even without his recommendation, developers would have the option of appealing directly to Council for a consent agreement.


Assistant City Attorney Brent Lloyd said he did not believe the rewrite was in conflict with state law, and added that the new rules are “simpler and more generous.”


City Council is expected to take up the matter at its Oct. 3 meeting.

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