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Downtown hotel zoning shifts to code amendment

Thursday, November 13, 2014 by Jo Clifton

After almost a year of going through the zoning change process, including trips to four different commissions and winning initial approval from City Council, developers of the Aloft Austin & Element Hotel are now seeking an amendment to the Land Development Code and giving up on their zoning case.

Conventus Corporation and the Finley Company, represented by Richard Suttle of Armbrust and Brown, were seeking a change from Central Business District (CBD) to CBD-CURE (Central Urban Redevelopment District) for the property at 619 Congress Ave. They plan to build a 32-story, 409-room hotel on that narrow space.

The main reason for the zoning change was to get a variance reducing the setback requirement from 60 feet to 40 feet. However, the site where the hotel is to be built is within the Congress Avenue Overlay.

Suttle explained, “Under four city attorneys … they’ve always allowed CURE to modify the overlay. But after our first reading, (Council Member) Laura Morrison asked, ‘Can we really do this on an overlay district?'”

It turned out that the answer was no; such a variance is not allowed by city code.

According to Zoning Case Manager Jerry Rusthoven, “The Congress Avenue Overlay District requires buildings to be set back from Congress Avenue as they get taller. However, before the existence of the overlay, the Bank of America building was built on the east side of the street.” It had no setback.

“Because the view shed is already impeded by the Bank of America building, the City Council has four times in the past approved a reduction of the setback from 60 to 40 feet on the east side of the street,” Rusthoven continued. He noted that those variances were granted twice for properties owned by Tom Stacy, for the Frost Bank Tower and for the JW Marriott Hotel, which is currently under construction. In each of those cases, the city used CURE zoning to reduce the setback.

“But CURE can’t be used to adjust an overlay regulation, a fact that was not noticed when Council approved setbacks for the other four buildings,” Rusthoven said. So, “staff believes that the overlay itself should be changed to conform with what the City Council has previously approved.”

Morrison said, “I’m certainly open to hearing people’s comments on it. It does appear that we have, as a rule, accepted the 40-foot setback instead of the 60-foot setback as a standard, although under a process that really wasn’t appropriate.”

Morrison added that even though the CURE zoning case has not been withdrawn, it would not be possible for it to go forward.

Rusthoven said the code amendment will go to the Planning Commission’s codes and ordinances committee next week and on to the Planning Commission itself Dec. 9. The amendment is scheduled to come back to Council on Dec. 11, the final meeting for this Council.

During the many hearings surrounding the developers’ building plans, opponents argued that the company’s decision not to provide parking, except for valet parking and what is required by ADA regulations, would make the plan unworkable.

The next-door neighbor, home to the Hideout Theatre, had a valid petition against the zoning change. The group worried that construction would drive away business. However, the valid petition is now moot.

Suttle and Rusthoven both said that Jeff Howard, the attorney for the Hideout, had notified them by email that he would not oppose the code amendment. Suttle said he and Howard were still in the process of finalizing an agreement to mitigate the construction’s impact on the theater.

According to state law, under the Capitol View Corridor, buildings on the west side of Congress must maintain a 60-foot setback.


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