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Thursday, March 21, 2019 by Ryan Thornton

Debate over rezone gets in the way of voluntary annexation deal

A decision by the Zoning and Platting Commission Tuesday to push a zoning case hearing back to April could jeopardize an opportunity for the city to annex a 42-acre lot south of FM 2222.

The heavily wooded property, east of Lake Travis at the end of Milky Way Drive, is located within the boundary of a city of Austin limited purpose jurisdiction, an area that is regulated by the city’s land development code but whose residents do not pay city taxes or receive municipal services.

Landowner Garrett Martin of MileStone Community Builders is offering consent to have the property annexed if the city simultaneously approves an application to rezone the site from its current nondescript zoning category (Development Reserve) to Single-Family (SF-1) with a conditional overlay that will allow him to build no more than 45 single-family residential units with a minimum lot size of 21,000 square feet.

MileStone purchased the land from its former owner, Berta Bradley, after Bradley gave 40 acres of her property to Autism Trust USA and decided to sell the remaining 42 acres for development.

The commission approved a similar zoning request for the site on Feb. 21, 2017, as part of a joint rezoning request which also included the adjacent tract of land where the Autism Center Austin is today, but the case was indefinitely postponed several months later by City Council on May 4, before expiring on Nov. 1, 2017.

The applicant is now moving forward with a separate zoning request decoupled from the Autism Center site.

Martin’s agent, Jeff Howard of McLean and Howard, told the commission that the applicant is ready to provide consent for annexation of his property, as mandated by state law since 2017, as long as the city moves forward with the rezoning request at the same time. If Council wishes to take up the annexation item at its April 11 meeting, Howard said, the zoning request will also need to be on the agenda that day.

Chair Jolene Kiolbassa, who was absent at Tuesday’s meeting but wished to hear the case in person, sent a request to her fellow commissioners to push the item back to the commission’s next meeting on April 2 so that she could participate.

Fortunately for Kiolbassa and other interested parties, Milky Way Drive resident Brian Showers was present to make that request on behalf of the neighborhood.

“The notice for this came out eight days ago,” Showers said. “It took another four days for that to come through and another day after that before it was posted anywhere publicly. So as a neighborhood representing over 1,100 homes, we simply have not had a chance to organize that group of people to come here and give a good representation for a solid debate on facts and logic here tonight.”

Showers said it was also unsettling that staff’s recommendation has changed since the case was heard in February 2017 and that the public has not heard the rationale for that change.

Compared to the 2017 request, this development plan allows for slightly higher density, changing the maximum number of residential units from 42 to 45 and lowering the minimum lot size from 30,000 square feet to 21,000 square feet.

Ron Thrower of Thrower Design said postponing the case would unrealistically expect city legal staff to draft an ordinance in the time between the next ZAP meeting and the City Council meeting.

“Currently the Law Department asks for up to a month between the ZAP hearing and the actual Council date to do the ordinance preparation,” Thrower said. “I suspect that eight days between April 2 and April 11 is not going to be adequate time to get an ordinance ready for this.”

Howard said his client is OK with a two-week postponement if there can be some assurance that the zoning case will be ready for hearing with the annexation item on April 11. If not, Howard said his client is not interested in “full purpose annexation and the payment of city taxes without getting the zoning” requested.

The case manager, Sherri Sirwaitis of the Planning and Zoning Department, said the most she can do is make a request to the Law Department but cannot guarantee that an ordinance will be ready by any particular date.

Commissioner Jim Duncan said in this particular case, not granting the neighborhood a postponement would be a “slap in the face” to residents who would like to speak on the matter but have not had adequate time to prepare.

With only six commissioners present, just enough for a quorum, the commission unanimously chose to honor Kiolbassa’s and the Milky Way Drive neighbors’ requests by granting the two-week postponement.

Clarification: Though commissioners were poised to move forward with the case, that came to a halt when Commissioner David King threatened to leave the dais. That move would leave the commission unable to hear the case due to a lack of quorum. In the end, the neighborhood request for postponement was granted.

Photo courtesy of the city of Austin.

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Key Players & Topics In This Article

annexation: Annexation is the way that cities extend their municipal services, regulations, voting privileges and taxing authority to new land. Under the Imagine Austin Comprehensive plan, the city should annex property in order to: "apply zoning and development standards, including environmental protection; create efficiencies in service delivery, particularly for public safety services; maximize the return on the City’s investment in infrastructure and business incentives; protect and expand the tax base; and provide municipal services beyond those available in rural areas."

City of Austin Board of Adjustment: The city's Board of Adjustment is a quasi-judicial body that decides on variances, special exceptions and can issue interpretations of code.

extra-territorial jurisdiction (ETJ): The unincorporated land within the five miles of the city limits that is not within the city limits or ETJ of another city. Austin is the only municipality authorized to annex land within its ETJ.

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