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Council torn on height of east side project

Friday, March 9, 2018 by Jo Clifton

Even though they expressed a wide variety of opinions on the East Fourth Street zoning case, City Council members voted unanimously on first reading Thursday to grant a 60-foot height on the proposed office building and sent the developer off for more discussions with the East Cesar Chavez neighborhood.

Attorney Michael Whellan of Armbrust & Brown, representing the developer, said his client could move forward with the 60-foot height allowed under the central urban redevelopment (CURE) overlay but preferred to add an extra story, which would bring the building site to 72 feet.

Whellan told Council if it approved the 72-foot height, the developer would provide a 9,000-square-foot space for nonprofit art businesses on the first floor at a reduced rent for five years. He said the offer was worth approximately $945,000, in addition to the $516,000 fee-in-lieu for affordable housing for the CURE zoning at 60 feet.

There was some consternation on the dais about the fact that they were even discussing CURE because Council has directed staff to bring an amendment forward to eliminate CURE zoning from the city’s Land Development Code. However, Whellan pointed out that the case was filed last July, which was before Council indicated that it wanted to get rid of the CURE overlay. According to Jerry Rusthoven of the Planning and Zoning Department, the matter was listed on Thursday’s agenda but was being postponed.

Several neighbors told Council they were not at all happy with the idea of a new neighbor at either 60 feet or 70 feet. Gwen O’Barr said the project had destroyed five affordable houses and that the fee-in-lieu was insufficient.

Another neighbor, Kristen Heaney, said she believed that the neighborhood does support a 60-foot height based on the fee being paid for affordable housing, although she reiterated that the fees set by the city are too low. She also questioned whether five years was enough time for arts organizations to receive reduced funding.

Jennifer Seay of Art + Artisans Consulting said she has been involved with the East Austin Studio Tour since its inception. Although people were surprised to find so many different artists in East Austin when the tour first occurred, it is no surprise to people now because the public knows that East Austin is home to a lot of artists. However, those artists are losing their spaces “because it’s just gotten too expensive to stay.” For that reason, she said, she was very happy when she read about the possibility that the developer was offering a reduced rent for artists.

Katherine Brimberry said she would be pushed out of her studio in 2019 and was looking for a new place. But the deal needs to go longer than five years, she said, suggesting a lower rent for 10 years. Council Member Ann Kitchen picked up that theme, saying five years was not enough.

The project is in Council Member Pio Renteria’s district, and he said, “This would be a good project if it were somewhere else.” He added that his daughter lives across the street from the project, and she and her neighbors are fearful that the height would “delete some of the sunshine” from their building.

“They’re totally against it. I know there’s a lot of benefit that comes along with a project like this, but unfortunately, it’s just at the wrong spot,” he concluded.

Council Member Delia Garza said she wanted to move the project along and made a motion to approve it on first reading at 72 feet. Council Member Greg Casar said he wanted to give the developers and neighbors an opportunity to consult further and made a motion to postpone the case.

Mayor Steve Adler said that he hoped that the rewrite of the land use code would result in increased fees that developers have to pay in lieu of putting affordable housing on-site and that they would be more likely to add the housing to their projects.

Adler said that in general, he was not sure that he wanted to support the 12 additional feet the developer was asking for.

“But I also recognize that the only way we’re going to get affordable creative space and affordable housing in this part of the world is if we do use the tools that we have. The Legislature has not given us very many tools. One tool they have given us is the ability to use the additional height in exchange for community benefits. And if we don’t do it this way we will not have – five years down the road and 10 years down the road – we’ll have none of that in this neighborhood. It will be an expensive neighborhood for everybody who lives there, and there will be no opportunity to be able to create mixed-income opportunities.”

So what it comes down to, he concluded, it is a decision about whether this is an appropriate place to make that kind of exchange.

Recognizing that he was going to be on the losing end of the vote, Renteria said he would like to see people who have been displaced, such as artists who formerly had businesses on Sixth Street, be given first shot at the space. However, he added that he wanted to make an alternative motion to deny the zoning change.

Adler told Renteria he should simply vote no, as opposed to making a motion. But Council Member Alison Alter suggested that Renteria was actually trying to make a substitute motion to allow 60 feet. Casar withdrew his motion to postpone, and Garza then changed her motion to allow a zoning change with a 60-foot height limit. That passed unanimously.

Assistant City Attorney Mitzi Cotton told Council there were some substantial legal matters that she needed to discuss with them in executive session prior to second reading. She did not elaborate, but it is widely known that what is called “contact zoning” is illegal in Texas. Council may not extract promises outside a well-defined legal framework in granting zoning requests. So, for example, it may not be possible for Council to require a lower rent for artists for any specific length of time. Although the developer may pledge to provide that, the promise would likely not be enforceable.

Project developer Tyler Buckler of Cielo Property Group told the Austin Monitor after the hearing that he was pleased with the outcome and looking forward to more conversations with the neighborhood.

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