Champion case moves to commission
Friday, December 22, 2017 by Jo Clifton
Champion land use cases never die; they just move to another forum.
In this case, the question of development restrictions on the 45-acre tract at 6409 City Park Road has gone from City Council to the courthouse and back to Council, and it is now moving to a hearing at the Environmental Commission on Jan. 3.
Council voted unanimously at its Dec. 14 meeting to send the case to the commission, after Council Member Alison Alter failed to find sufficient support for her motion to simply reject the proposed variances.
Council approved those variances in November 2016 as part of changes to a 1996 settlement agreement with the property owners, the Champion sisters. However, because the city failed to give appropriate notice that it would be voting on waivers of the Hill Country Roadway Regulations and the Lake Austin Watershed Ordinance, a judge declared that vote void.
Attorney Richard Suttle argued that even considering taking away the variances that had been granted more than a year ago would be extremely unfair to the property owner. After all, it was the city’s failure to note the variances to the roadway and watershed regulations, and its failure to quickly correct the error by scheduling the matter for reconsideration, that had slowed down the project and brought it back to Council 13 months after the original approval.
Suttle also explained that reconsidering the environmental variances was part of a zoning case started in 2015. He and city officials spent many months negotiating the best outcome for the parties. That included setting aside 30 acres of the tract in a conservation easement to protect critical environmental features.
The attorney seemed surprised that Council would now be hearing testimony from the neighborhood in opposition to what had been negotiated in 2016.
But the neighbors had hired their own attorney, Bobby Levinski, who is well-known at the city as a former Council aide and zoning case manager.
Levinski and the neighbors are especially concerned about the structural excavation that would be allowed under the proposed regulations. Under the agreement approved by Council in 2016, in order to build the 300-unit apartment building, builders can excavate up to 34 feet. However, under the 1993 regulations excavation would be limited to 8 feet, they said.
Nevertheless, city Environmental Officer Chuck Lesniak told Council that his recommendation still stands. “I think this is still environmentally a significantly better deal than what could have been done under the entitlements of the 1996 agreement. I think we’ve got honest disagreements amongst the community and I respect the folks that disagree with me on this.”
Lesniak added, “I don’t disagree that it is a very significant amount of disturbance in that area along City Park Road. We’re clustering development in that location. It’s the way they could give up 5 1/2 acres of impervious cover and set aside the other 30 acres. We got what I consider really extraordinary construction phase erosion controls, far beyond what our current code requires. … I realize other concerns and we’ve got staff that have reviewed the other concerns. I think this is an environmentally beneficial agreement.”
Council Member Leslie Pool explained that she did not really understand the case when she voted on it in 2016. She said, ” I wanted to respond to something that Mr. Suttle said about relitigating this issue. I personally can tell you that when this came in front of this dais … last year, I was nowhere near as familiar with the intricacies and the, you know, weavings of all of the various ordinances. I was – I am still learning zoning and overlays but I know more now than I did a year ago.”
Pool also expressed anger that Suttle had changed the boundaries of the project in order to nullify what had been a valid petition against the proposed changes from the neighborhood. This is a legal but uncommonly used tactic to defeat valid petitions, which require that Council approves zoning and other changes by a three-fourths vote instead of a simple majority. Pool said the tactic is unfair, drawing cheers and applause from the audience.
Alter said her preference would be for Council “to just flat out deny. And if the will of the dais is not there, then I will ask that we move this to the Environmental Commission. It’s very clear and it has been very clear to me for some time, that the process has been flawed and that trust in our institutions from this process is very low.”
Council members Jimmy Flannigan, Greg Casar and Pio Renteria seemed ready to move forward with granting the variances.
Flannigan, like Alter, was elected in 2016, but the project is in Alter’s district and she was paying attention to it before she was elected.
Flannigan pointed out that both the zoning and the environmental variances were taken up together. “That was the whole deal that was trying to be struck, good or bad, and it just seems weird that we would undo a piece of it without undoing all of it. I just struggle with saying that they got their zoning when the only reason the applicant asked for the zoning was that it was happening with this other piece … if the Council is not willing to grant the waivers, then I don’t think we should have granted the zoning. And might need to return back to the original condition before that case began.”
He then attacked the whole idea of changing the rules after the fact.
“And I think if that’s how we’re going to operate, then I look forward two years from now to come back to this Council and asking you all to undo things that I’ve changed my mind on. But I don’t think that’s how we operate as a body. And I feel like I need to defend my colleagues who did seem to know what they were doing when they took their votes. I don’t want to get two years from now and find some new Council member trying to undo the decisions that we’ve all deliberated in this last year,” Flannigan concluded.
So now the case is moving to the Environmental Commission. It is slated for a hearing and vote on Jan. 3. However, some members may not be back from their holidays, so that that date could easily change to Jan. 17. The case is slated to come back to Council on Feb. 1, the first scheduled regular meeting of 2018.
The Champion sisters, who struggled and litigated with the city for many years, sold this tract some time ago. Josie Champion, who appeared before Council to argue for her family’s property rights on several occasions, passed away on Dec. 13, the day before the Council heard this matter.
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