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Council plans to move on Rob Roy zoning, covenant change

Friday, January 24, 2014 by Elizabeth Pagano

Though a lawsuit is already pending, the City Council will move ahead with a Rob Roy zoning and a change in a restrictive covenant change next week.


Before Council looked at the matter Thursday, Rob Roy homeowners Russ and Terri Harris filed suit against the City of Austin and Brandywine Acquisition Partners, LP. That petition asked for temporary and permanent injunctions to prevent the city from amending restrictions currently in place.


The request for injunction is based on the claim that the Harrises are “directly affected” by the restrictive covenant as adjacent landowners, and that they are also a party to the covenant.


The restrictive covenant on the land requires a majority of City Council and those parties directly affected to approve amendments to the covenant. Part of the argument in court will be about which land owners are directly affected.


In the end the case was postponed, but Council Member Bill Spelman reasoned that it should be postponed based on the Mayor Lee Leffingwell’s absence alone. Currently, the rezoning has a valid petition against it, with 28.21 percent of the adjacent landowners opposed. This petition means that at least six members of City Council must approve the zoning to change. Spelman noted that it was typical Council practice to hear such cases with a full, seven-member City Council present.


The petitioners object to any change to the PUD regulations on the property, saying that allowing the construction of “a facility three times the size” of the allowed office building will negatively impact already-overcrowded traffic and schools.


The Rob Roy Homeowners Association objects to the amendment of a restrictive covenant on the property, with the claim that they are a party to that covenant. Attorney John Joseph of Coats Rose Ryman  & Lee is representing the HOA, and in a letter explained that the amendment could not be made without first obtaining the consent of nearby property owners.


“One party is clearly the city, the other party we have heretofore interpreted as being the owner of the tract and adjacent property owners believe that they should be counted as being directly affected, therefore they should be included in the other party. That’s the other party, not us,” said Spelman. “So, from a legal point of view, the court would not be in a position to tell us we cannot offer to change a restrictive covenant at all. We could pass changing it on our end. It would not take effect until the other party – whoever that turns out to be – made a similar change to the restrictive covenant on their end.”


City legal staff reassured Spelman that this was, indeed, the case.


The currently undeveloped site, which is located at 800 North Capital of Texas Highway, is part of the 1989 Davenport Ranch West Planned Unit Development.


The 17-acre Canyons at Rob Roy is a small part of the 444-acre 1989 Davenport Ranch PUD mixed-use project that will consist of single-family homes, condominiums, apartments, offices, commercial space and St. Stephens School.


Developers are asking to amend the current agreement to change the land use of the tract from “office” to “MF-2,” which will allow them to proceed with building, at the most, 245 residential units. Staff supports the plan, as it is less-intense than the original use.


In December, the Zoning and Platting Commission approved staff’s recommendation, though they recommended limiting the number of residential units to 225.

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