Then There's This: Grandfathered Death Star
The Vested Rights Ordinance is new, but is it improved?
After a few starts and sputters, a do-over, and a postponement, a revised Vested Rights Ordinance (aka grandfathering ordinance) is set to go to City Council May 1 for a hearing and possible action.
It's safe to say that neither the real estate community nor the environmental community got everything they wanted in the current draft, but after a second go-around before the Planning Commission earlier this month, the proposed ordinance now tilts more favorably toward developers. No surprise there.
What's a little surprising is that the PC had already given the ordinance its unanimous blessing in October, but from that point the draft took a tumble and staff was directed to hunker down and make additional revisions, presumably to satisfy the concerns of the Real Estate Council of Austin.
To rehash a little bit of history, let's back up to December 2012 when the state Attorney General's office determined that the city's rules didn't square with more lenient state laws on the length of time a project can remain idle before it's deemed "expired." The opinion wasn't legally binding, but it may as well have been. It immediately set off alarms at City Hall and added firepower to RECA's long-held argument that Austin's development rules were too restrictive. Facing the threat of a hammer from the Legislature, the characteristically reactive City Council repealed the 1977 Project Duration Ordinance and ordered a rewrite of that section of the land code to align it with state law. (The city's original ordinance had been enacted as a means of protecting the Barton Springs Zone and other environmentally sensitive areas.)
But the rewrite staff produced last fall still didn't cut the mustard, according to RECA's reading of state law. For one thing, its members argued, large projects require decades to complete, and as such are subject to economic shifts. Land planner/landscape architect Paul Linehan, who's been in the development-environmental trenches as long as many veterans can remember, broke it down this way for Planning Commission members at their April 8 meeting: "I've probably been in front of you more than any other individual asking for extensions on site plans," he said, calling the five-year project term on preliminary site plans "kind of ridiculous." Often, he said, by the time a developer gets a site plan approved and starts the platting process, the bottom falls out. "I've been through five downturns in the last 35 years here in Austin," he said. He bases much of his experience working on megasubdivision projects like Circle C, Barton Creek, Steiner Ranch, and other master-planned communities. "Davenport Ranch took me 25 years," he said.
In view of that concern, the current proposed draft extends the life of projects potentially to 13 years by starting the clock at the time a development permit is approved, rather than submitted as an application.
Environmental leaders, of course, hold a different view of how the rewrite process has shaken out. Save Our Springs Alliance Executive Director Bill Bunch recalled the ordinance's rewrite history since its repeal last year – city staff, with outside counsel, revised the rules and brought its draft to the PC in October. "And then somehow the process got derailed, and now we're back with a much weaker ordinance." The added flexibility could prove problematic. "Now you're creating a huge incentive for somebody who is in the business of just speculative paper-filing trying to create tradeable development futures," he said, noting that a more stringent rule would enable staff to distinguish between a legitimate project with legitimate delays versus a deliberate foot-dragger trying to game the system. Additionally, he said, the latest revisions make it easier for a landholder to make a grandfathering claim without a "well-founded" argument to support the claim.
Environmental engineer Lauren Ross offered that it's hard enough as it is to enforce the city's watershed laws when only a small number of projects actually comply with the ordinance, while most others have been granted exceptions.
Though the Planning Commission ultimately recommended the Vested Rights Ordinance – this time on a 7-1 vote (with Chair Dave Anderson opposed and Alfonso Hernandez absent) – several members expressed heartburn over what they were about to do. Danette Chimenti noted that the version they passed in October represented more of a compromise than the one they were about to send to Council. "It seems the changes brought forward now are all to appease the development community ... and yet the development community is still opposing it – it's still not enough [for them]."
Brian Roark struck a fatalistic chord with his observation that no matter what the city does, the Lege is always going to be angling to chip away at the city's grandfathering laws. "Back when I was a kid, Freeport-McMoRan was the evil empire, but that was a simplistic analysis back then and now," he said, referring to the global conglomerate whose then-CEO Jim Bob Moffett helped ignite the aquifer wars of the late Eighties and early Nineties. "It seems now that the Death Star is kind of hovering over the Capitol for Austin ... I'm not sure if this is really going to matter."