Developing Stories: 'L' Is for 'Lake' – and Legal and Ludicrous

Save Town Lake members (l-r) Bill Oliver, Tom Cooke, and Bob Livingston took their message, and music, to KGSR studios Tuesday morning. (Photo by John Anderson)

What a tangled web our Land Development Code weaves!

In the public outcry against the huge condo complex proposed by CWS Capital Partners for 222 and 300 E. Riverside, the focus has been on the developer's attempts to build closer to the water than the law allows. The initially filed plan showed three 17-story towers with portions just 80 feet from the shoreline of Lady Bird Lake. That's not allowed without a variance from the Planning Commission or City Council: On this tract, the city's Waterfront Overlay Ordinance requires a 200-foot building setback. But just as troubling to many opponents was the towers' 200-foot height, proposed and allowable. That 17-story urban profile is wildly out of scale with the south shore of the lake – with the single exception of the 17-story Hyatt Regency Hotel. Shockingly tall when it opened in 1982, that waterfront tower helped spur the WO Ordinance protections in the first place.

Council Member Mike Martinez, who has led the recent charge at council against WO variances, predicts the CWS projects may become more reasonable in scale – or get the hell out of the Waterfront Overlay – before they're presented for a vote at Planning Commission. The value of protecting the waterfront is widely upheld by Austinites, as evidenced by a recent independent poll commissioned by nonprofit SaveTownLake.org (see poll results, below). Thanks to a postponement by CWS attorney Richard Suttle, the actual Planning Commission vote has been rescheduled to Oct. 9. For the past year, the project's siting, height, and scale have been hot citizen concerns. As Austinites fighting developments all around town have learned, the godly powers of zoning law often lie in the details – and in how ordinance provisions are interpreted and applied by city staff.

What entitles CWS to 200 feet of height? Not the Waterfront Overlay Ordinance but the "L" (Lake District) zoning on the tract. An unaddressed root of the problem, in this case, is the inconsistencies between two sets of zoning regulations – base "L" and overlay "WO" – that apply to the property. The clear intent of each ordinance is to protect the public's interest in the river's natural scenic beauty, accessible open space, and environmental quality. Yet mad­den­ingly, each ordinance – as interpreted together by city staff – is undoing the other's protections regarding building height and scale.

Developers and property owners hardly can be blamed for using their entitlements. If Austin doesn't want high-rise towers on its scenic river shores, then why has the city permitted them through Lake District zoning for more than two decades? Bizarrely, the 200-foot maximum building height provided under "L" is the highest explicitly entitled anywhere in Austin, even Downtown. Equally intriguing, the special "L" zoning applies to just three large tracts on the south shore of the lake. Why did they get special treatment, via the "L" zoning? And what was its original intent?

Natural Scenic Beauty

To help answer these questions, Neigh­bor­hood Planning and Zoning Director Greg Guern­sey provided the relevant ordinance documents and some interpretations. The original "L" zoning was created in May 1972. The ordinance's language was explicitly preservationist: "It is necessary to regulate the development of land in the area of Town Lake for purposes of preserving the waters thereof from pollution and preserving and enhancing the scenic beauty and aesthetic features of the Town Lake area, while at the same time allowing Town Lake area property owners to make beneficial use thereof."

Only three tracts in Austin were zoned "L." One surrounds the Hyatt footprint. According to Guernsey, the Hyatt was approved by the Planning Com­mis­sion on Aug. 6, 1979. (Late last year, much of this tract was rezoned as an ungainly planned unit development.) The two other tracts zoned "L" are also on the south shore: Directly east of Congress Avenue, they bookend the Austin American-Statesman property. (It also was since rezoned as a PUD, with WO variances granted, CWS attorney Richard Suttle told the Parks and Recreation Board.) The CWS property lies on the easternmost "L" tract; controversially, it also may overlap onto a Limited Industrial-zoned site with a 60-foot maximum height.

The 1972 ordinance stated, first and foremost:

"In the 'L' Lake Development zone no building or land shall be used and no building shall be erected or structurally altered, unless otherwise provided in this chapter, except pursuant to a special permit, approved by the city council."

Clearly, the intent in creating "L" zoning was to ensure extra public scrutiny for projects on these tracts, by means of a "special permit." Today that's called a conditional-use permit. A CUP requires a public hearing on a contested site plan and gives City Council explicit powers to deny a particular use for a property – even if entitlements (like height) are otherwise in place. Key point: It was only in the context of requiring the CUP, and other limiting regulations, that the 1972 ordinance set a maximum building height of 200 feet.

The original 1972 "L" zoning ordinance further explicitly states that in determining whether to grant or deny a special permit: "The city council, city planning commission and the director of planning shall take into consideration, in addition to the factors set out in section 45-29(d), the effect that said development may have on the pollution of or the quality of any lake or other watercourse, its effect on the natural scenic beauty of the area and any other effect such development may have on the environment."

That's precisely the consideration that SaveTownLake.org and other opponents of Waterfront Overlay variances are pleading for today. Turns out the zoning provision to achieve their goals was put on the books 35 years ago. Now all Austin has to do is follow that law's spirit and letter, right?

If only it were so easy. In a 1984 rewrite of the entire Land Development Code, "L" zoning was redefined. Lake District zoning became Lake Commercial, presciently encouraging mixed-use development that honored Town Lake – and allowing residential uses in that context. As a package deal, both the conditional-use-permit requirement and the 200-foot height limit were maintained. Lost in the rewrite was the passionate language about protecting "scenic beauty" and "aesthetic features" and environmental quality. But the 1984 ordinance notes, "Use and site development regulations are intended to ensure that uses will be compatible and complementary in all respects with the Town Lake environment."

Building height was controlled further by adding a volumetric 8-1 floor-to-area-ratio requirement, which also applies Downtown. It significantly limits the size of the towers now proposed by CWS for 300 E. Riverside (a 120-foot tower, 325 project units total) and 222 E. Riverside (a 200-foot tower, 390 units total).

Less Restrictive?

Under base district "L" zoning, all the permitted uses on these tracts are actually conditional uses subject to special Planning Commission and City Council review. But in the Waterfront Overlay, in the interest of encouraging mixed-use development, residential uses are permitted automatically. Where two zoning codes apply and their language is inconsistent, it's standard staff protocol to interpret overlay regulations as trumping base district zoning.

Javier Delgado, the city's lead case reviewer for the 222/300 E. Riverside project, confirmed that the CUP requirement had been waived by staff for those projects. He explained that Water­front Overlay zoning trumps "L" zoning, because the latter is considered "less restrictive." This, he said, nullifies the zon­ing requirement for a conditional-use permit. Guernsey confirmed, "A CUP is not required for residential uses in the WO district" for a property in a "less restrictive" base zoning district.

But given that the explicit intent of both special ordinances was to protect Town Lake, this unholy mating of two ordinances has birthed, in city parlance, an unintended consequence. One could quite reasonably argue that "L" is more restrictive, at least on the point of the CUP provision. Certainly its intent – to provide for additional public scrutiny – is wholly consistent with the protectionist Water­front Overlay. Staff can't fairly make this kind of judgment call; they must follow zoning protocol. But council can and should be free to intelligently consider and act on the preservationist intent of both ordinances.

As this controversial project goes before Planning Commission, what we have instead is a kind of cherry-picking. The 200-foot height entitlement is being plucked out of the "L" zoning – but without the CUP provision that stood watchdog over it.

Then there's the relationship of heights to setbacks from the lake. CWS agent Suttle repeatedly bemoaned to the Parks Board the unfairness of unequal WO setbacks from tract to tract. At 200 feet, this property's setback is deeper than that of neighboring tracts. But varied setbacks were established by WO subdistrict for good reason. The waterfront is a patchwork of differently zoned parcels; each tract has different entitlements for uses, heights, impervious cover, and densities. (The 200-foot "L" height should be no surprise to council: It was called out and illustrated in a special diagram in the 2000 study by ROMA Design Group for this subdistrict of the Town Lake Corridor.) It was intelligent then to put an unusually deep 200-foot setback on an unusual stretch of waterfront allowing 200-foot buildings. Indeed, the "step back" design guidelines of the original 1986 WO ordinance carefully push the tallest buildings the farthest from the water.

If the Planning Commission or City Council could enforce the CUP requirement for "L" tracts, it would neatly solve the dilemma of this particular project – by allowing the city to deny a use for this site that's not "compatible and complementary in all respects with the Town Lake environment." If the site plan isn't "Land-Use Commission Approved" (that is, by the Planning Commission), it expires on Dec. 3. Of course, to try and enforce the CUP, our elected city officials would need the huevos to overrule zoning staffers and city attorneys, who take direction from the city manager. Or they simply could deny the site plan if it comes to them on appeal from the Planning Commission. Martinez, at least, shows signs of being up to the task.

"What we can take from this case is that there is no one plan that has all the answers," said Martinez. "There is no one vision that can apply in perpetuity. Nor is there a true zoning category that can speak to every scenario. We must continue the public process and evolve with times that may lie ahead. This council is acutely aware of the evolution of this city and fully prepared to protect what makes Austin such a wonderful place to call home. And Lady Bird Lake is one of those sacred aspects that we must all work to protect."

Philosophically, retiring City Manager Toby Futrell asserted for this article: "I do not support incremental variances to the Town Lake overlay. It was put in place for a good reason, and if we don't believe it is serving us today, we should revisit the overlay as a community, comprehensively, not in pieces." That's exactly what Martinez and Leffingwell recently have been arguing. It's so heartwarming when everyone can agree.

Online: The 1972 "L" (Lake) zoning ordinance is at: www.cityofaustin.org/edims/document.cfm?id=28141; the 1986 Waterfront Overlay district ordinance is at: www.cityofaustin.org/edims/document.cfm?id=4726.