Thursday, April 10, 2014 by Elizabeth Pagano

Vested Rights Ordinance jumps final hurdle on way to Council vote

After several months delay, the latest version of the Vested Rights Ordinance is headed back to City Council.


Members of the Planning Commission expressed reservations from the dais Tuesday about what effect it might or might not have on the city, though the ordinance ultimately passed.


“It seems like now the Death Star is kind of hovering over the Capitol, for Austin,” said Commissioner Brian Roark, referring to efforts by state legislators to emasculate the city’s attempts to limit grandfathering. “I’m not sure any of this is really going to matter.”


The Vested Rights Ordinance will fill the space left vacant when City Council repealed the Project Duration Ordinance in March 2013. That move came after State Attorney General Greg Abbott issued an opinion that the city’s law was in conflict with state law.


In October, the Planning Commission voted 8-0 to approve a previous version of the new ordinance. That version, however, stalled at Council, leading to the new draft, which continues to agitate members of both the environmental and development communities.


The Planning Commission heard from the environmental community, who said the ordinance goes too far to protect land owners’ grandfathering rights. Members of the real estate and development community said the restrictions go too far. Both sides spoke against the new draft.


Despite the opposition, after a few tweaks, commissioners voted 7-1 to recommend the ordinance to Council. Chair Dave Anderson voted in opposition, and Commissioner Alfonso Hernandez was absent.


“I understand the developers’ perspective about wanting it to be easier… It hasn’t been necessarily easy, but that’s kind of the purpose. We don’t want to make it so easy,” said Roark. “I’m quite conflicted on a lot of it. I think it’s, quite honestly, a bigger issue than we’re going to be able to decide here today.”


In addition to recommending the draft, commissioners added a recommendation that determinations of vested rights by the department director should be written and published online. They noted that this transparency was a rare point of agreement from all sides, who hope that the previous, inscrutable process of uncodified review for vested rights could be improved.


The commission also suggested that be capped at nine years from the date of application for both commercial and residential project as opposed to 13 years. 


Environmental engineer Lauren Ross warned against the original language of the ordinance that mandated a project life would not end until every permit issued had expired. She warned that the limits of this provision were unclear, and would allow for “daisy chaining” to an undefined point.


Planning and Development Review Director Greg Guernsey explained that when added up, the limit would be a total of 13 years.


Paul Linehan, who spoke on behalf of the Real Estate Council of Austin, said that he had been through five economic downturns in the last 35 years in Austin.


“This idea of 13 years, I believe, is very, very short,” said Linehan. “You need to simplify this process, but the real estate cycle is what gets in the way – for good and for bad.”


Save Our Springs Executive Director Bill Bunch said that RECA “basically won the whole war a year ago” when the Project Duration Ordinance was repealed, but he was willing to live with the previous draft of the Vested Rights Ordinance that had come through the Planning Commission.


“Then, somehow, the process got derailed. And now we’re back with a much weaker ordinance,” said Bunch.


Jeff Howard spoke on behalf of RECA, and explained that the initial draft of the ordinance had arrived without the expected stakeholder process, leaving the group without alternative recommendations when it came to the Planning Commission last time. Howard explained that it was only after Planning Commission approval that they were able to go through that stakeholder process with RECA.


Howard cited several issues with the resultant ordinance, including worries that a consent agreement process that goes through Council could become politicized. He also worried about the process used to determine vested rights, which he said should be treated like a legal determination, as it was.


Though the ordinance is scheduled to go to Council today, it is expected to be postponed at the request of staff in light of the Council’s attendance at President Barack Obama’s speech and subsequent delay of the meeting.

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Key Players & Topics In This Article

City of Austin Planning Commission: This commission addresses issues of land use as assigned to it by Austin's City Code. These include the abilities "[t]o make and amend a master plan, recommend approval or disapproval of proposed zoning changes and control land subdivision within neighborhood planning areas and submit, annually, a list of recommended capital improvements." It has sovereign authority, or the right to make final decisions on certain cases.

Project Duration Ordinance: A repealed ordinance that dictated how long a project would remain valid after filing an initial application.

Real Estate Council of Austin: 501(c)6 for "more than 1,700 commercial real estate professionals representing the top leaders in the Central Texas business community." RECA is a donor to the Capital of Texas Media Foundation, the parent of the Austin Monitor.

Save Our Springs Alliance (SOS): An advocacy organization. According to its web site, Save Our Springs "works to protect the Edwards Aquifer, its springs and contributing streams, and the natural and cultural heritage of the Hill Country region and its watersheds, with special emphasis on Barton Springs."

Vested Rights: A doctrine that protects a person who won a legal decision from a legislature overturning that decision.

Vested Rights Ordinance: The city’s codified criteria for reviewing vested rights.

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