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ZAP approves multifamily zoning despite Rob Roy opposition

Tuesday, December 17, 2013 by Elizabeth Pagano

A gamble on a reduced Zoning and Platting Commission paid off for developers of a controversial West Austin project.

The property is currently undeveloped and located at 800 North Capital of Texas Highway, also known as Loop 360. The land is part of the Davenport West Ranch Planned Unit Development, and currently designated as “office.” Brandywine Acquisition Partners, LP, would like that designation changed to allow low-density multifamily residential on the property.

The proposed project will be a maximum of 245 units on slightly more than 16 acres. Staff recommends the change, which is a less-intense land use than originally planned. A traffic impact analysis of the new project shows a reduction in traffic of about 50 percent.

Armbrust and Brown attorney Richard Suttle represented the project’s backers, choosing to go forward with the case despite the absence of Commissioners Jason Meeker, Rahm McDaniel and Gabriel Rojas. In order to win approval, all four commissioners present would have to vote in favor of the change.

That gamble paid off, and the commission voted 4-0 to approve the zoning change and amendment to the restrictive covenant, though a request to lower the density from Chair Betty Baker led to a reduction of the maximum allowed units to 220 units from 245 units.

“I will maintain on this case tonight, we are not embarrassed. In fact, we are proud to bring it to you,” said Suttle. “A multifamily use, with appropriate buffers, is probably more appropriate against the single-family houses than the office uses.”

“If you are living out there in a multifamily you are probably traveling the same direction at the same time as some of these folks are, but 245 multifamily units is not going to make a blip in the traffic on 360,” said Suttle. “You can laugh all you want, but it’s true.”

Neighbors were less enthusiastic about the change.

Rob Roy Homeowners Association Secretary, Vice President of External Affairs and legal liaison Ed Burbach spoke in opposition to the request. He said that a survey of the community found that more than 90 percent of Rob Roy residents supported an office use for the land. The HOA Board also voted to oppose the zoning change and to retain John Joseph of Coats Rose Yale Ryman Lee as outside counsel.

“During my tenure, we’ve never had that much support for anything,” said Burbach.

Commissioner Sean Compton said that it was a “touchy subject” but that he looked toward the Imagine Austin Comprehensive Plan for guidance, and the notion of compact residential development and a mix of uses.

“I think when you drive 360, there is a lot of single-family residential uses, there’s a lot of office, and I know that the traffic is horrific… I think that having cross types of uses provides for a reduction of traffic,” said Compton. “And I think that’s what our comprehensive plan provides for.”

Commissioner Patricia Seeger said that while she typically sides with neighborhoods, she saw the potential reduction in traffic impact as appealing.

“At the end of the day, I have to vote in favor of this because I think it’s a better use for the property. No one seems to want apartments in their backyard, and I understand that, but we don’t have enough apartments in the west side of town,” said Seeger. “Changing the zoning, in the long run, could be a benefit to your community.”

Suttle also spoke to the high demand for multifamily housing in the area.

“We put multifamily in every other part of town. Not very often do we put it in this part of town,” said Suttle.

Joseph, representing the homeowners’ association, said that the project was “downzoning in name only,” and building multifamily so close to the neighborhood was inappropriate.

Homeowners expressed shock about the proposed change, saying the existing zoning and restrictive covenant led them to believe the lot was destined for office buildings unless the neighborhood gave permission to change the zoning.

Russ Harris spoke in favor of office buildings, which are busy while residents were away from their houses, and quiet and empty in the evenings and on weekends.

“Basically doubling the density of Rob Roy with apartments will interfere with the enjoyment of our homes and, we feel, break the promise the city made with us,” said Harris. “We feel like a deal is a deal and the city should honor its commitment.”

Neighbors felt that they should have some say in amending the restrictive covenant, which was approved in 1989.

Suttle said that he agreed with city legal, and that the neighborhood had petition rights on the zoning case, but not the restrictive covenant. He said that, in his opinion, requiring the permission of neighbors would be an “unlawful delegation of the land use authority.”

“It’s an agreement that has been in existence for 25 years, and these people deserve to have that agreement maintained,” said Joseph.

Separately, there is a valid petition against the rezoning that stands at 22.98 percent, which will force a supermajority vote at City Council for the zoning case.

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