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Vested Rights Ordinance headed back for Council vote this week

Monday, April 28, 2014 by Elizabeth Pagano

A revised Vested Rights Ordinance is headed back to City Council again this Thursday.


The ordinance is intended to fill the hole left when Council repealed Austin’s Project Duration Ordinance in March 2013, after an opinion from Attorney General Greg Abbott that the city law was in conflict with state law. Though at the time there seemed to be a rush to replace the previous ordinance, more than a year later the new ordinance has yet to pass.


An earlier draft of the Vested Rights Ordinance made it as far as Council last winter, but that draft was pulled and revised. Now, the new draft is ready and both the environmental and development communities say they are unhappy with it.


A letter from Save Our Springs Alliance Executive Director Bill Bunch recommends that Council adopt the original vested rights ordinance instead, calling it a “fair compromise ordinance” between the two sides.


The letter goes on, saying that “every single change since that time has been to the favor of developers and the Real Estate Council (of Austin) and to the detriment of home rule powers, local control, and obtaining compliance with current ordinances.”


Bunch recommends that the ordinance limit projects to five-year lives, and warns against the repeal of prior ordinances “lest we end up, inadvertently, leaving development unregulated all together.”


RECA’s Ward Tisdale spoke to the Austin Monitor and explained his organization’s position on the matter. The first draft of the Vested Rights Ordinance went to Council, but then was pulled from future agendas as RECA (and, presumably, others) spoke to staff about changes they thought should be made. At some point, those talks went dark. RECA, too, has concerns about the draft that will be before Council Thursday.


“We are very firm in our belief that state law prevails in this area. The Attorney General agrees with that, I think most lawyers when looking at it would agree with that too, so that’s really been our first position,” said Tisdale. “But we also want to make a deal with the city. We believe in this community and we want to come up with a solution that is favorable for all.”


Tisdale explained that, essentially, it came down to a number.


“How long should a project be able to operate?” said Tisdale. “We polled our developers and they felt 20 years was a good, safe number to have in this ordinance to account for the complexities of development.”


Tisdale said that 20 years was the right number for both commercial and residential projects, given the complexities of development and vagaries of the market. However, he said that 13 years “would be something that would be palatable to most our members.”


Right now, the proposed ordinance would allow developers to get to 13 years through “daisy-chaining” of permits. However, when the ordinance came through the Planning Commission, they recommended that number change. They approved a revised ordinance that put a hard limit of nine years from the date of application on both commercial and residential projects.


Both sides also have issues with the Managed Growth Agreement section of the new ordinance. Tisdale says it is a “good safety valve” for larger projects like Mueller or the Domain, which need more time for completion. The disagreement between the two sides concerns whether the size of these projects should be limited, and what that limit should be if it is.


Bunch’s letter also asks that project consent agreements be limited to those that show a well-founded claim for Texas state law Chapter 245 grandfathering. He writes, “as written, the applicant merely has to make a ‘claim’ that they are grandfathered. Anyone can ‘claim’ grandfathering, even where there is zero basis, and that has happened repeatedly. This should not be a sufficient basis for contemplating a project consent agreement.”


Bunch also asks for clarification that project consent agreements in the Barton Springs watershed require a Council supermajority vote.

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