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PUD changes advance despite commission stalemate

Friday, January 15, 2016 by Elizabeth Pagano

Changes to the city’s Planned Unit Development policy are moving forward as quickly as promised, but they will be doing so without a recommendation from the Planning Commission.

If approved by City Council, the proposed amendment to the city’s Planned Unit Development Ordinance would require a supermajority approval at Council when a land-use commission denies an application in cases involving previously unzoned land. That is the criteria already in place when developers rezone land to PUD zoning.

Though rare, there are parcels of land throughout the city that do not yet have zoning. Most significantly, the proposed Grove at Shoal Creek PUD in District 7 is on land once owned by the state, and those 75 acres remain unzoned. Assistant City Attorney Brent Lloyd explained that because the change is procedural, “it’s not the kind of thing that you grandfather out of,” and any changes made now would apply to the Grove’s potential rezoning.

During public comment, most of the discussion centered on the Grove, despite reminders from staff that the amendment was not about that case specifically.

Chris Allen, who lives in the Rosedale neighborhood, agreed. He said the amendment was not just about the Grove but was “important for every piece of unzoned land throughout the city.” “Fixing this loophole will restore some level of civility to the process and will restore the proper role of land-use commissions for PUDs on unzoned land,” said Allen. “A level playing field will actually promote good development and prevent conflicts. I’ve seen 20 years of PUDs, and I can assure you that’s the case.”

McLean & Howard, LLP attorney Jeff Howard represented the developers of the Grove at Shoal Creek and spoke against the amendment. He disagreed with the notion that the amendment was about “closing a loophole” and expressed concern that the change could discourage PUDs, and affordable housing, on state-owned land.

“This case is about political leverage. It’s about changing the balance of power as it relates to the Grove at Shoal Creek. It’s about making it so that three Council members out of 11 can deny that project,” said Howard. “This proposed amendment is bad law, it’s bad process, and it’s bad policy.”

Howard explained that there is an inherent, recognized difference between rezoning and zoning unzoned land, and the distinction in the code was intentional. He also said that the amendment was, in fact, about one case, and that was not a good reason for a citywide change.

“If this is not about the Grove at Shoal Creek, then why are we rushing this through? Why aren’t we having stakeholder meetings? Why aren’t we doing a thorough examination of how other cities do this? Why aren’t we engaging the state and finding out what issues they might have?” asked Howard.

The Planning and Zoning Department’s Jerry Rusthoven acknowledged that Council had given his office “a pretty tight deadline” for preparing the code amendment, but he said he had contacted the Austin Neighborhoods Council, the state, the Real Estate Council of Austin and the developers of the Grove to get their opinions on the change.

And just before the meeting convened Tuesday night, the state responded through a letter from the General Land Office.

That letter, written by asset enhancement Senior Deputy Director Brian S. Carter, includes a concern that the amendment “could force the GLO to elect to pursue approvals under Section 31.165 of the Texas Natural Resources Code and avoid the City’s zoning process altogether.”

Carter explained, “It appears that state-owned lands in the City of Austin are among the ‘un-zoned’ properties targeted by the proposed ordinance. The GLO is very concerned that the proposed code amendment could make any potential disposition of state-owned lands more difficult and may reduce the monetary return to the State of Texas from any such disposition as a result.”

In the end, Planning Commission members remained divided on the issue and it will move on to Council without their recommendation. Commissioners Patricia Seeger, Trinity White, Tom Nuckols, James Shieh, Nuria Zaragoza and Angela Pineyro De Hoyos were in favor of the change, and commissioners Fayez Kazi, James Schissler, Jose Vela, Michael Wilson and Jeffery Thompson were opposed. Chair Stephen Oliver and Commissioner Jean Stevens were absent.

Vela said that he was leaning against the change already, but the letter from the General Land Office was “game, set and match” for him.

“I don’t like supermajorities, as a general matter. I don’t care what the legislative body is. They’re unnecessary; they throw obstacles … they cause problems,” said Vela.

White, who supported the change, said she was having a hard time understanding how it would prevent the creation of PUDs, given that most PUDs are rezonings that are already held to this process.

“It doesn’t seem like it’s so much more difficult that it just guarantees that it is going to be prohibitive,” said White. “I think (the opposition) sounds a little bit more like, ‘No, I don’t want to do that.’”

Senior Planner Greg Dutton explained why staff supported the change. “We feel like there is already a higher bar for PUDs, and it’s kind of a recognition that PUDs are a special animal. It’s not conventional zoning, and it really makes sense for all PUD cases to be treated the same way,” said Dutton. “A PUD is a PUD, no matter where the PUD is coming from.”

The Planning and Neighborhoods Committee will consider the code amendment this week, and it is tentatively scheduled to be heard by the full Council on Jan. 28.

Empty lot – Ybor” by Zeng8r (talk) – I created this work entirely by myself… Licensed under CC BY-SA 3.0 via Wikipedia.

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