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Zoning Commission narrowly avoids threat of lawsuit

Tuesday, February 23, 2016 by Jack Craver

The Zoning and Platting Commission spent just over half of its four-hour meeting Tuesday debating the merits of a project that the panel does not actually have the authority to change or reject.

The commission ultimately voted to approve city staff’s recommendation that a property owner be allowed to add two houses to a 1.17-acre lot at 5201 Bull Run, in Northwest Austin, but only after a commissioner changed her vote amid concerns that delaying the project could expose the commission to a lawsuit.

Unlike in many other zoning cases that go before the city’s two land-use commissions, subdivisions cannot be blocked as long as they comply with city code. In this case, city staff found that the subdivision complies with code and that adding a rain garden and a detention pond on the property would more than make up for any flooding issues brought on by the additional impervious cover.

Some of the commissioners, including Chair Gabriel Rojas, felt that the recommendation from staff essentially ended the conversation, unless somebody could present evidence that staff had erred in its assessment of the project’s compliance with code. To the nearly two dozen neighbors who attended the meeting to oppose the project, Rojas repeatedly emphasized that the commission’s hands were tied and that their general complaints about flooding in the area were not enough to stop the project.

But for a number of commissioners aligned with neighborhood associations, the neighbors’ concerns – as well as the unexpected presence of City Council Member Don Zimmerman in support of the neighbors – justified a postponement of the project.

Some commissioners voiced unease with accepting staff’s contention that the project would not exacerbate flooding in the area, clearly swayed by testimony from some neighbors, including retired engineer Joseph Yura, who told the commission that “no amount of arithmetic suggests that is going to improve the flooding situation that we have.”

Vice Chair Jackie Goodman suggested that, even if the commission could not ultimately stop the project, a postponement would facilitate an opportunity to discuss ongoing flooding concerns in the area, including the city’s failure to improve drainage.

“Postponement would have (given) the council member, surrounding property owners and the applicant opportunity to join together and identify the causes and potentially feasible cures or improvements for very real, very serious flooding issues,” explained Goodman in an email to the Austin Monitor.

A veteran of city planning and a former Council member, Goodman also said that commissions and developers traditionally accommodate Council members who request postponements.

Zimmerman’s presence was unusual, not only because Council members rarely attend commission meetings but because, as the politician noted to the commission, he is not typically regarded as a skeptic of development. His concerns, he explained, were driven by the fact that the neighborhood had been promised that its annexation by the city in the 1970s would come with the addition of infrastructure improvements that he claimed were still nowhere to be seen.

“The people that pay the taxes do want you to consider these decades of promises that have not been kept,” he said.

Rojas, however, argued that complaints about flooding had been addressed by the city’s watershed expert and that it was not the commission’s role to dispute staff findings. He also said it was unfair to hold the project “hostage” because of flooding issues that he said were unrelated.

“I do worry about ZAP spending large amounts of what precious little time that we have on cases in which we have zero discretion,” Rojas told the Monitor by email. “It feels disingenuous to me even to postpone a subdivision case like the one we had Tuesday because it may give surrounding residents that oppose the subdivision a false sense of hope that if the commission can get more information about flood issues in the neighborhood we would somehow have the option available to use to deny the subdivision, which just isn’t at all true.”

Nash Gonzales, an agent for the property owner, Angus Valley Joint Venture, urged the commission to approve, saying that the “clock is already ticking” because of costs the owner was already incurring awaiting city approval.

An initial motion to approve deadlocked, 5-5. Rojas and commissioners Susan Harris, Thomas Weber and Dustin Breithaupt – along with Zimmerman’s own appointee to the commission, Commissioner Bruce Evans – voted to approve the project. Goodman and commissioners Ann Denkler, Jolene Kiolbassa, Betsy Greenberg and Yvette Flores voted against. The commission similarly deadlocked along the same lines on a motion to postpone the case.

The deadlocked votes prompted questions to staff about whether the commission would be liable in a lawsuit from the developer and whether such a suit could make it before a judge in the two weeks before the commission’s next meeting, a question that drew laughs and stumped assistant city attorney Robert Davis.

“I’m not familiar with the (courts’) caseload,” he said.

Finally, Flores signaled that she would change her vote to advance the project.

“I voted to postpone, but I do understand our ministerial duty to approve the case,” she said.

With Flores added to the five original votes in favor, the project was approved. Denkler, Kiolbassa and Greenberg voted again to oppose approval, while Goodman abstained.

Rojas said he was proud of the commission’s final action because “we showed that we could believe the science about reduced flooding from our engineering staff enough to wade through the intense feelings that people brought to the meeting.”

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