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Planning Commission votes to break Rainey Street covenant

Tuesday, September 27, 2016 by Elizabeth Pagano

It’s one of the most densely populated parts of the city, with nearby access to bike trails, downtown, public transit and Interstate 35, but development fights in the Rainey Street District have a familiar villain: traffic.

Last week, the Planning Commission voted unanimously to remove a restrictive covenant in the heart of the district that limited development to 30 units per acre. But there was much less of a consensus among those in the crowd that spilled into the hall, where supporters and opponents showed up to discuss the change.

The restrictive covenant was placed on the land at 80 Red River St. in 1979 and, according to many who testified, forgotten soon after. In 1983, the Villas on Town Lake Condos were built at that address. Although they still stand there at present, in 2005 the property was rezoned as Central Business District along with the rest of the Rainey Street District. Now, Sutton Company developers are asking to terminate the restrictive covenant, which will allow them to move forward with a project under the existing CBD zoning, without the restriction.

Gary Johnson, who is president of the board of directors for the Villas on Town Lake, spoke in favor of lifting the restrictive covenant. He explained that the Villas were in a low-density neighborhood for the first two decades of their existence. However, that changed in 2005, when the neighborhood began its rapid transformation at its own request. Johnson said that since then, the owners have been “acutely aware” that their property would probably be sold someday. In investigating their options, they discovered the 1979 covenant. He explained that, had they known in 2005, they would have requested its removal concurrent with the rezoning to CBD.

“We were completely unaware of it,” said Johnson. “We believe the restrictive covenant is obsolete. It may have made sense in 1979, when it was a low-density residential area, but it doesn’t make sense for our neighborhood today.”

The owners have since voted to sell the property and terminate the covenant in what Johnson termed “a tough decision.”

Planning commissioners agreed with that tough decision. Commissioner Patricia Seeger said that the current and prior City Councils had both emphasized putting more residential units downtown.

“The downtown area is the area for our densest development,” said Seeger. “A restrictive covenant that is almost 40 years old that limits the number of units to a prize site is just outdated. It’s time to put it to bed.”

Town Lake Neighborhood Association President Susan Morgan was one of a handful of neighbors who spoke in opposition to the request. She told the commissioners that the group stood with the nearby Shore Condos. Despite its name, the association is a newly formed representation for the Rainey Street District. She explained that the group opposes the request to remove the covenant based on the “potential impact to their quality of life.”

“We’re ready to go. We’re gathering members from all the condo areas, plus the homeowners,” said Morgan. “The Villas actually gives us a reason to come before you with our concerns about our inner-city, urban core neighborhood.”

The intersection at Cesar Chavez and Red River streets, she said, “had failed.” That intersection, which she proposed could be fixed with a public-private partnership and an overhead walkway “to get the foot traffic off the streets,” took up the bulk of her testimony.

Luke Padwick said that, as a resident, he didn’t enjoy the daily road rage from traffic. He added, “As a physician, I’ll tell you, there are intoxicated people on the street, bicycles, horses, cars: It’s dangerous. … This is going to make it worse. It’s about public safety.”

These concerns didn’t fall on deaf ears, despite the unanimous vote to remove the restrictive covenant.

Commissioner Nuria Zaragoza agreed that the traffic in the area “feels very unsafe” and echoed the need for a transportation plan for “an area that has gone through tremendous change,” though she too supported removing the covenant.

Chair Steve Oliver pointed out that the transportation infrastructure for the area is “clearly lagging,” but he questioned whether that was a reason to stop development from occurring. He also emphasized the need for a transportation plan.

“Those are the questions I know we battle with, but I know that it has to be crystal clear from this Planning Commission that we are highly supportive of the implementation of a transportation plan, for the fixes for this neighborhood,” said Oliver. “Because no development going in here, now or in the future, is going to love the nest of troubles they are getting into.”

Nikelle Meade, who is representing the developers, said that arguments that residential traffic would be greater than traffic from an office building were “unfounded.” The development proposal would increase the property’s density to 183 units per acre – which, she noted, would still be less than the Shore, whose residents account for the vast majority of opponents. She also said that their request was consistent with the Imagine Austin plan, the Waller Creek plan and the Downtown Austin plan. “This is not a city that says we do not want more residences downtown. We say the opposite,” she said.

“The Shore is here saying exactly what they have is inappropriate to the area,” said Meade. “I just think, to the Villas residents, that’s not fair.”

Meade reiterated that no one had known the restrictive covenant was in place. She bolstered this claim with the original rezoning application, in which city staff said there was no covenant in place. She said that throughout the three-year process of rezoning to CBD, “nobody intended to have this density restricted” and that there was no reference to such a covenant in the minutes of the many meetings that took place during that time.

City Council will have the ultimate say on whether the restrictive covenant is removed, and it is expected to take up the issue at its Oct. 13 meeting. After that, the site plan for the property will be reviewed by the Small Area Planning Joint Committee, which will take a closer look at the specifics of the development.

Photo by Matthew Whitehead made available under a Creative Commons license.

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