The Austin Chronicle

Public Notice: A Modest Proposal

Zoning doesn't have to be so hard

By Nick Barbaro, January 30, 2015, News

The new City Council did us all a solid regarding today's historic first 10-1 Council meeting by postponing all of this week's zoning cases for at least a week, after a somewhat dizzying Tuesday work session on the topic. ("I'm brand new to this, and it's overwhelming," admitted CM Don Zimmerman, quoted in the American-Statesman.)

No shame there. The biggest item on the zoning plate, the intractable Garza Tract, is not going to go down easily. But in truth, that brand of complication is the exception rather than the rule. A good number of the Council's grinding, contentious agenda of zoning items consist of cases that really ought not to be making their way to Council in the first place.

If the new City Council really wants to save a lot of time at its meetings, here's a simple idea: This Council can do us all a favor, and cut their workload in half at a stroke, if they just send a clear message to the Plan­ning and Development Review Depart­­ment that they're going to stop entertaining idiotic contested zoning change requests, and treat existing zoning as what it is – the law – rather than as a starting point for negotiations, or as one side in an expected "compromise" between what the developer wants, and what the law says they can build. As it stands, if you want to build a condo complex on your single-family-zoned lot, you go in asking for an office tower, and let the city compromise you down to the condo complex. Then it's a win-win, right? (By analogy, suppose you want to rob a bank, but the law says you can't do that. What if you go in threatening to blow the place up, then negotiate a "compromise" that lets you just walk out with all the money at the teller windows? Another win-win.)

Here's an actual case – one that's currently wending its way through the development review process. The names have been omitted, not to protect the guilty or innocent, but because this isn't about one case – it's about what's considered the usual way of doing business with the city. (If you're really curious, the case is on file, and pretty easy to look up.)

Case in Point

Picture 45th Street at Speedway: a fairly major cross-town arterial, two lanes each way, with a scant right-of way, and small houses and apartment complexes along both sides. So: A small private investor has purchased the house on that corner, and would like to turn it into a restaurant, and has requested a zoning change to do so. But, as much as neighbors would love to have a nice restaurant in walking distance, logistical problems abound.

When it became clear, late last year, that technical details (grease trap in the floodplain, delivery trucks blocking 45th because there's no driveway access, and more) made this plan impossible, the developer's representative switched gears and changed to a request to change to office zoning – and that's what city staff brought to City Council, even though that zoning doesn't fit the owner's plans, and is clearly not a desired use in this fully residential area. At this point, the exasperated owner told neighborhood reps that he'd already paid his rep $70,000 in this effort; they countered by pointing out that, under the current zoning – including the neighborhood plan's allowance for greater density on a corner lot of this size – he could add more square footage of residential development than the total that would be allowed under the requested new zoning. This appeared to come as a surprise to both the owner and his hired gun, who makes a living lobbying for rule changes, not figuring out what can be achieved under the existing rules. And so the matter sits at present, with Council having kicked the new request back to the Planning Commission, neighbors waiting to see what happens next, and everyone having spent months spinning their wheels.

Clearly the current system works pretty well for developer lobbyists who are paid by the hour. But it doesn't serve anyone else: neither affected citizens who argue the other side on their own time, nor property owners and builders, nor city staff who feel compelled to "compromise" on existing regulations. And in the end, any semblance of city planning is out the window.

Developer lobbyists repeatedly claim that what they want out of the process is clarity and dependability. Well, how about this for dependability? How about if the city stops negotiating zoning on a piecemeal basis, and treats it as what it is: the law.

Especially in areas where there are approved neighborhood plans, a lot of (city-mandated) work went into those plans, and they are informed by the planning values that formed the process: connectivity, density along transit corridors, compatibility standards, etc. Some of those values change with time, and to that end, we are embarked on a major code rewrite in the CodeNEXT process, but in the meantime, why on Earth are we entertaining requests to change the law on a whim?

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