With the state Legislature looming over their shoulders, Austin City Council members are poised to relax a set of environmental rules that the Texas attorney general contends are illegal.
The council is scheduled to vote Thursday on removing the city’s “grandfathering” regulations and defaulting to more development-friendly state standards, a move sought by the city’s real-estate lobby and opposed by environmentalists.
Earlier this month, the city staff told the council that Austin is almost certainly in violation of state law and recommended making a change immediately, lest Austin court lawsuits. When the council delayed its vote, council members said they wanted time for additional public comment on a politically heated topic. Some council members also hoped to get a sense of how much more development could occur by changing the rules — but if anyone has a clear answer, they aren’t sharing.
The grandfathering rules mean some developments such as housing subdivisions and commercial buildings can be built under older rules that have since been replaced, usually with stricter ones.
The basic idea behind grandfathering is that once a developer starts the years-long process of building something, the rules do not change. But in Austin, projects have been exempt from new standards for a shorter period of time than state rules prescribe.
The city staff does not have data on how many developments could be allowed to proceed under less-strict standards, but many projects can take several years to be built after initial plans are filed with the city. Those projects could be exempted from some new tree-protection laws, limits on how much of a property can be covered with pavement or rooftops, among other development rules, planning director Greg Guernsey told the city’s Planning Commission last week.
Save Our Springs Alliance director Bill Bunch contends the effects of the change could be far-reaching, and that the city should be certain about them before changing its rules. Other environmental activists said Austin is complying with state law and should not change its rules based on the possibility of legislative intervention or Attorney General Greg Abbott’s recent legal opinion that Austin’s grandfathering laws would not survive a legal challenge.
“It’s like saying, ‘someone might punch you in the face, so why don’t you punch yourself in the face first?’” said Brad Rockwell, an attorney who works in environmental law. “It just doesn’t make any sense to run a city this way.”
The Real Estate Council of Austin, which is pushing for a change to the less-strict state standards, contends Save Our Springs and its allies are misreading state law and exaggerating the implications of a change. Members of the real estate council also argue that the city’s application of grandfathering rules have restricted the housing stock and contributed to the rising cost of living in Austin.
For instance, real estate agent Mike McHone told the city’s Planning Commission, a 217-unit condominium project at St. Elmo Road and South Congress Avenue that was first permitted in 2007 was caught up in the city grandfathering standards “and is now dead” after the developer paid more than $130,000 in city fees.
“Plans are sitting there, red stamped, but can’t go anywhere,” McHone said. “This is a real-life situation, and it’s really affecting the cost of housing in Austin.”
The real estate council has also backed its appeal to the council with the threat of legislative intervention. State Rep. Paul Workman, a Republican who represents Southwest Travis County, has filed a series of proposals that would extend grandfathered status to more properties, in what he considers a clarification of the murkier portions of the state grandfathering rules.