Then There's This: Fight or Flight

The one thing we now know about the proposed "emergency" action to abolish parts of the city's development code is this: There is no emergency. Never was.

In fact, after two postponements by City Council, the item posted on today's (Thurs­day) agenda carries no sense of urgency whatsoever. Unless you count the Real Estate Council of Austin's accelerated push for repeal and environmentalists' grave warnings against throwing the baby out with the bathwater.

During last week's lengthy public hearing that had opponents questioning the city's bum rush on such an emotionally charged issue, Mayor Lee Leffingwell explained that the term "emergency" only meant that the repeal and revisions to the city's "grandfathering" rules would take effect immediately, rather than in the customary nine days.

Such a maneuver would prevent opponents from seeking an injunction to stop the action, thus potentially allowing untold numbers of expired and presumed-dead projects to resume development, possibly under weaker regulations in the environmentally sensitive Barton Springs Zone and elsewhere.

The mad dash to rescind the city's 16-year-old Project Duration Ordinance was touched off by an attorney general's opinion last December, which concluded that the city rules were out of step with state law, which allows more development leeway on "grandfathered" projects. The fervency at City Hall has been tempered somewhat by the city's decision last week to bring in outside counsel to assess the situation.

Scott, Douglass & McConnico lawyers Sara Wilder Clark and Casey Dobson, who have represented the city in many land-use cases, are charged with weighing the staff's proposed repeal, reviewing the AG's opinion, and considering the legal briefs submitted from both sides of the argument. They met earlier this week with opposing attorneys and are expected to brief Council today.

Tuesday night, city staff released a list of idled or "zombie" projects that could be affected by a repeal of the ordinance. "We do have a universe of about 1,700 cases," said Greg Guernsey, director of the city's Planning and Develop­ment Review Department. "But the list is not definitive of whether they would be approved or denied." (One project city staff recently denied – Travis County MUD No.4, considered key to Stratus Prop­er­ties building out its Barton Creek property – is being contested; another project, involving a proposed settlement agreement with One World Theatre, is up for Council approval today.)

The city adopted the project duration rules in 1997, shortly after the Legislature inadvertently repealed a law which hampered Aus­tin's ability to control and manage growth, particularly in environmentally sensitive areas. The Lege corrected the accidental repeal in the following session and tightened the state's Chapter 245 local development code again in 2005. Ever since, RECA has been trying unsuccessfully to nudge the city into changing its duration rules.

The AG opinion, while nonbinding, added muscle to RECA's efforts to upend the city's grip on development projects deemed "expired" after three to five years. Austin Rep. Paul Workman, a commercial contractor and former RECA board member, is doing his part to heighten the fear factor at City Hall with proposed legislation that threatens to undo the city's ordinance if the city doesn't do it first.

Council's one-week delay to determine the number and type of development cases that would be affected by the appeal has given environmentalists some measure of hope. But the extra breathing room left RECA members frustrated. Attorney and lobbyist Nikelle Meade, speaking as RECA's president, expressed her dismay over Council's lack of action. "The issue of what cases could, might, or will be impacted by the proposed ordinance amendment will not only be extremely difficult to determine with any sort of accuracy but – more importantly – is beside the point," she wrote in an email the day after the postponement. "The question before the city is whether its laws are consistent with the state law and what to do about it if they aren't."

Save Our Springs Alliance Director Bill Bunch, one of the attorneys who met this week with the outside counsel, is grateful that the extra time allowed Council to take a longer view of the consequences of a repeal of the ordinance. "The Council will be far better informed on the law and on their options this week compared to last week," he said, adding that there's still a fair number of unknowns. "I'm not so sure about having the information necessary to understand the full impacts of repealing ... or of taking any alternative action."

Many of those who spoke at last week's hearing are veterans of Austin's decades-old war between environmentalists and developers. Former SOS board chair Robin Rather, who in 1999 helped broker a widely acclaimed peace agreement between the two warring parties (in which RECA reluctantly agreed to the existing project duration rules), urged Council members against going limp in the face of a Lege threat. She reminded them that state Sen. Kirk Watson, who served as mayor during much of the enviro-development turmoil, was willing to fight to defend the city's water protection laws. "The reason this agreement happened is that he made it happen," she said.

Several proponents of the repeal used the words "black and white" to describe what to them is a no-brainer: either the city is in alignment with state law, or it's not.

But Council Members Laura Morrison and Kathie Tovo argued there were still too many gray areas to consider before making an irreversible decision on established community values. "The only thing that is black and white for me is that this is not a black and white legal issue," Morrison said. "It would be a grave misstep if we repealed [the code] right now."