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CodeNext battles intensify where dense corridors meet neighborhoods


Supporters say CodeNext should provide for a more efficient and less costly approval process.

Critics worry the new regulations will help eliminate input from residents affected by new developments.

The monthslong negotiation process between the four households on Wild Street and an Austin developer began with two sketches.

In early September, the residents began huddling inside Allen Reichler’s home, suddenly responsible for hammering out terms for a nearly 100-unit apartment complex that could affect neighbors for blocks around. With North Lamar Boulevard practically in their backyard, these four families were quickly — but not unexpectedly — thrown into the lengthy and daunting task.

“We knew something was going to go up there,” Reichler said. “If you have that kind of property on the other side of your property line in the city of Austin, to think that nothing would go up there other than what is there today is foolish.”

Sure enough, a multifamily development real estate agent named J.R. Ellis approached the group of families, representing an Austin builder who hopes to build middle-income apartments behind their homes. They presented each family with two drawings, one that depicted what was allowed by code and one showing what the builder wanted to put there.

And because it was so close to the residential properties, current city policy meant the developer needed approval from at least three of the four affected landowners to depart from current zoning allowances.

“I said, ‘We really, quite honestly don’t care about you; we’re worried about us,’” Reichler said.

From adjustments to parking locations, resident rooftop access and water flow considerations, there was nothing that the four families asked of the developer that was not put in writing, Reichler said. While the city still has to approve the negotiations, three of the four families approved the variance request after almost four months of back-and-forth negotiations.

“They were pretty serious about not trying to muscle their way through this,” Reichler said, “and we were very serious about trying to work with them.”

While Reichler and most of his neighbors reached a relatively quick and amicable agreement in their case, this sort of tug-of-war between residents and developers can become extremely contentious, as was the case with Austin Oaks battle this year in Northwest Austin.

Yet, these transition areas — the places where more densely developed corridors and other zones bump up against traditional single-family neighborhoods — have come to symbolize one of the most fundamental and most heated debates over CodeNext, the city’s ongoing overhaul of its land-use code.

While not formally defined in the CodeNext drafts, these spaces embody one of the rewrite’s fundamental debates — how the city will balance demands for a more flexible code and streamlined approval process with the ability of residents to retain enough control over the shape and size of developments going up near their homes.

Proponents argue the final version of CodeNext should retain certain compatibility standards, but it also should provide for a more efficient and less costly approval process for more types of buildings. Critics worry the new regulations will give away the store, eliminating the ability of the city and residents to extract certain concessions from developers, as Reichler and his neighbors did.

The unpredictability issue

The issue covers a vast cross-section of the city, but it comes to a head along the corridors where the city hopes to promote denser residential and commercial development, such as Lamar Boulevard and Burnet Road.

The second draft of CodeNext includes a set of new requirements for these stretches, proposing a set of building types and density levels that would provide a smoother transition between the corridors and the residential neighborhoods that abut them.

“You wouldn’t get a monolith building (near a residential unit), you’d have to stair-step it,” said CodeNext project manager Jorge Rousselin. “The closer you are to the activity corridor, the taller you can build. The closer you are to the residential unit, the shorter it can be.”

Under city code, a developer is only required to meet with a neighborhood association or land owner and engage in city processes when the developer wants to build something that varies from what current zoning allows, such as in Reichler’s case.

These negotiations result in a conditional overlay, which creates a zoning district unique to a specific property.

It’s these conditional overlays that add to the unpredictability of the current code, said Scott Turner, owner of Austin-based construction company Riverside Homes.

Anything allowed under a designated zoning category is up for negotiation between the two parties, from height, setback and compatibility requirements to less technical issues. Turner said this can make the process excessively arduous and complex.

“It’s hard to predict going in what you can get out of it, and it’s impractical for the city to rezone on a spot basis every time,” Turner said. “It’s extremely inefficient and just takes time … so it’s a disincentive (for developers) to go into in the first place.”

Turner, who founded Riverside Homes in 2001 and worked as a real estate agent for four years prior, regularly works with neighborhood residents during his home construction projects and said he often runs into the “conditional overlay problem.”

Even when city code does not require him to, Turner said he has made a habit of meeting with residents early and often to explain the intentions of his project and answer questions about current zoning.

More developers are engaging in conversations with neighborhood residents now than before, he said, noting that completing a project on good terms with neighbors helps draws in more business for the developer later.

Still, many developers don’t engage with neighbors if those conversations are voluntary, even though the city currently tries to encourage them. In that sense, Turner said, CodeNext takes positive steps toward creating a better platform for developments that won’t require neighborhood approvals.

CodeNext would not change the requirement for negotiations in the case of developments that vary from code. However, in its current form, it would increase the number of “by-right” building types allowed in many areas of the city, allowing for more flexibility in what property owners could build without going through individual zoning cases.

And with more by-right development opportunities, developers might not have to request zoning changes nearly as often — something that proponents say will decrease building costs, encourage the addition of more housing in the city and ultimately help ease Austin’s soaring costs.

“One of the obstacles of (the current code) is that it’s too onerous to go from two units to three or four units,” Turner said, “so you don’t see many being built, if any, unless the zoning is already there.”

‘Strategic negotiation’

However, such an expansion of by-right development possibilities could decrease the chances that a developer would engage in any sort of conversation with nearby residents or neighborhood associations. And while it would substantially improve the predictability of the process, it would give residents less input into the proposals that arise around their neighborhoods.

In fact, said District 7 City Council Member Leslie Pool, the expected reduction in variance requests under CodeNext would leave residents and neighborhood associations with few options to mediate conflict or request concessions from developers.

“Why would I (as the city), give away a freebie for nothing?” Pool said. “Why would I give away an entitlement in advance when I can hold that and get more reduced apartment prices, or contributions for a park, or maybe a playground, or anything? We’re increasing the ability for different uses without using that as an opportunity for strategic negotiation.”

Within Pool’s district, members of the Crestview Neighborhood Association have become some of the most vocal CodeNext critics. For the average resident, the idea of a decrease in these dialogues and a loss of control can be a major concern.

When negotiations between Crestview landowners and developers are on a small scale, like compatibility issues or the removal of trees, the neighborhood association doesn’t typically stand in the way, said Mike Lavigne, president of the association.

It becomes more heavily involved when commercial developments are planned — a major source of anxiety under this second draft of CodeNext, which expands the types of commercial use in some areas available to developers.

“If you change the rules to allow (more) entitlements, there’s even less action between the builder and the neighborhood,” said Lavigne, who also serves on the board of Community Not Commodity, which opposes the current CodeNext draft. “There’s no reason they would ever come to the neighborhood, because there’s no reason for them to ask for anything anymore.”

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