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CodeNEXT consultants discuss the fate of conditional overlays and PUDs

Tuesday, March 28, 2017 by Joseph Caterine

Like magicians before a skeptical audience, the CodeNEXT consultants asked the land use commissioners at their March 21 joint meeting to suspend their disbelief and envision an Austin with very few planned unit developments and zero conditional overlays.

Since they replaced conditional zoning site plans in the mid-1980s, conditional overlays have been used to tweak building requirements (setbacks, height, impervious cover, et cetera) on a particular site to give the city some wiggle room within any given zoning district.

“(Conditional overlays) provide a certain amount of granularity that’s not really attainable with other mechanisms,” said William Burkhardt, chair of the Board of Adjustment, at the meeting.

According to the CodeNEXT team, there are currently around 4,000 conditional overlays in the city, which amounts to about one for every three parcels of land.

Peter Park, the former planning director for the city of Denver who is now consulting for CodeNEXT, said that there had been a similar influx in waivers and conditions, the Denver equivalent of conditional overlays, before the Colorado capital launched its own form-based code overhaul.

“In terms of zoning practice and best practices, (an abundance of conditional overlays) is recognized as the symptom of a problem,” Park said. “It’s what communities do to work around deficiencies in their base zoning.”

Moreover, Park said, due to the transactional nature of conditional overlays, where the terms are negotiated first between city staff and the developer and then often again between commissioners or City Council members and the developer, the final product is highly variable and results in inconsistent zoning districts. In other words, even mechanisms made to promote flexibility can break if bent too far.

As an alternative, the CodeNEXT draft prescribes form-based zoning districts, designed to preclude excessive adjustments, as well as emphasizing the role of conditional-use and minor-use permits.

“The benefit (of these permits) is that they are applied the same way to all uses across zones,” said consultant Lisa Wise, “so (rezoning is) not (done on) a case by case basis, but (follows) a more standardized approach.”

The CodeNEXT draft recommends that these permits be approved before the site plan review process, which would allow the land use commissions to focus more on city planning rather than being overwhelmed by rezoning cases, Wise said.

While the draft throws out conditional overlays, it retains the option of PUDs, another specialized zoning tool, a choice Zoning and Platting Commissioner Yvette Flores said she found to be contradictory.

Planned unit developments, such as the controversial Austin Oaks proposal that passed its second reading during last week’s Council meeting, allow multiple developments to be regulated as if they were a single project.

Consultant John Miki agreed that, moving forward, PUDs must be employed more judiciously than they have been historically. “The danger in PUDs is you go down the same road that you go down with COs,” he said. “You are creating more and more specialized zoning.”

Nevertheless, Miki said that PUDs still give developers and the city the opportunity to do innovative projects, citing the Colony Park Sustainable Community Initiative as an example.

“We don’t want to completely eliminate the potential of using (PUDs), but we want to infuse in the city a little more rigor about when you choose to use a PUD versus not,” he said.

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