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Ironic twist in development regulations could scuttle condo project

Thursday, May 8, 2014 by Elizabeth Pagano

Neighbors and developers showed up at Citizens Communication en masse at last Thursday’s City Council meeting to speak out against city staff’s rejection of the Weekly Homes’ Harper Park site plan. It seems playing by the rules could keep a proposed condominium project at 5816 Harper Park Drive from being built.


Planning and Development Review Director Greg Guernsey explained that when the zoning case passed in December, a vested rights claim had not yet been submitted.


“I myself thought that it was probably going to be grandfathered,” said Guernsey.


However, he said, according to the ordinances of 1985, he had to reject the site plan.


“I am forced to follow the regulations of ’85,” said Guernsey. “It’s unfortunate in this case that it came out so late… Right now, I am compelled to follow what the courts said.”


Previously, the courts did determine that the land was grandfathered. At the time of that case, the dispute was over developers’ desire to build a hotel on a different tract in the subdivision, though their preliminary plan was for an office building. The judge ruled that because there was a hotel in the larger plan, that hotel would be grandfathered as well.


Since then, developers have changed their plans once again. In December 2013, they won a zoning change that would allow them to build a condominium project that consists of what look to be single-family homes.


When developers came back to the city to get approval for their preliminary plan, they ran into trouble. Under the 1985 Barton Creek Ordinance that they sought to be grandfathered under, there is no provision for condominiums. Instead, the code only distinguishes them as one or two family structures. Though developers may be allowed to avoid the Save Our Springs Ordinance when building a hotel or office building that also requires them to stick to the code in place at the time and that code does not recognize condominiums as they are on the site plan.


Graves Dougherty Hearon & Moody attorney Peter Cesaro said that, as they went through the process, they understood that grandfathering wouldn’t be a problem. Now he understood that a condominium project would only be allowed if it had attached walls – something explicitly prohibited under conditions attached to the zoning.


Cesaro said that they would be appealing the staff decision to the city’s 1704 committee, which hears matters related to grandfathering, and asked for City Council’s support.


Ian Dietrich, who is the land manager for David Weekly Homes in Austin, expressed frustration that the project wasn’t rejected until February.


“It doesn’t take an attorney to understand that this isn’t right. We have gone about the public process in the right way. We have added restrictions to the site to appease every single stakeholder. At the end of the day, the city staff has changed its mind and is no longer supporting the development,” said Dietrich.


“If the city staff does not support healthy development and practices in respect to gaining the public trust… what will developers do in the future? I can tell you that my company will not want to invest the same time and money in developing what seems to be a good project in the city of Austin,” said Dietrich.


Sandy Causey, treasurer of the Oak Park Subdivision Association, told Council that she honestly didn’t think that she would have reason to address Council again so soon, let alone about Harper Park. She expressed frustration that they had worked through a private restrictive covenant and crafted a restrictive covenant for the zoning change all for a project that was now being considered inappropriate by staff.


“I need to explain to my neighbors why a project that they’ve worked hard on for nearly a year, in the interest of having a quality residential project build behind their single-family homes, as opposed to dense commercial development, can no longer be built because the city department who recommended the project to all parties involved now says ‘no’,” said Causey.


“Oak Park did its part. The reversal so late in the process makes no sense,” said Causey.


Causey was joined by Oak Park Subdivision Association President Mary Lynn Rogers-Reebel, who said the site plan rejection “defies common sense.”


Council Member Chris Riley thanked Rogers-Reebel for the work that she put into the project, saying, “I completely agree with you. The situation we are in now points up some serious issues with the process that we’ve got. I really hope we can work it out.”


Though developers and neighbors spoke to City Council about their issues last week, it’s unclear what result they expected. They will ask for reconsideration of the original determination to staff this week before taking other steps.


Guernsey said that the case was difficult for him as well, and noted that staff had spent a great deal of time on it.


“I’m just looking at the language in black and white,” said Guernsey. “I actually had assumed that condo was condo. But when you drill down into the Barton Creek Ordinance, it doesn’t speak to use, it speaks to structure.”

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