Earlier this year, after hearing city staff’s conclusion that a proposed Southwest Austin condominium development would violate city environmental rules, the City Council was poised to reject the project. Then the council delayed the vote at the last minute and, two weeks later, the city staff dropped its objection and the council gave the go-ahead.
The council learned of a recent legal opinion issued by Texas Attorney General Greg Abbott. He determined that for roughly 15 years Austin has been enforcing some of its environmental rules — particularly those limiting development over the environmentally sensitive Edward Aquifer — illegally.
Now the city staff is asking the council to change the city code to make it more closely reflect Abbott’s reading of state law. In an unusual step, the staff has asked the council for “emergency passage” on Thursday, which would make the change take effect immediately instead of the typical 10-day wait.
“We’re doing that out of an abundance of caution,” said Greg Guernsey, head of the city’s planning department. “We believe maybe we’re not following state law, and we need to address the situation as soon as possible.”
It’s not clear how much the change will affect Austin. The city staff does not have estimates of how many acres or tracts will be eligible for more dense development, and Terry Irion, a lawyer who often deals with the city’s development rules, said most of the big parcels of land over the aquifer have already been developed.
Abbott’s ruling is a classic illustration of the rift between deep-blue Austin’s political culture — particularly its approach to environmental protection — and the property-rights-friendly laws of deep-red Texas.
Abbott’s main contention is that Austin has been too reluctant to grant “grandfathered” status to developments that are proposed under different rules than are in effect once construction begins.
In the mid-1990s, the Legislature enacted statewide grandfathering rules to ensure that once a project is approved, local governments cannot then impose additional regulations. Among other things, the law states that a project cannot be subject to new rules unless its developers make no progress for at least five years after securing approval.
But critics contend that grandfathering has been twisted by landowners who submit plans before being ready for construction so that a project can fall under older, often less strict development rules. The situation was complicated in 1997, when the Legislature repealed the grandfathering protections — inadvertently, state lawmakers said — and did not restore them for another two years. In that span, Austin adopted its own, more strict rules. In some areas of the city, a project is automatically subject to new rules if city officials determine it has been idle for three years.
The city staff is essentially proposing that Austin adopt the less-stringent state standards. Environmental activists are viewing the proposal with suspicion, while in development circles, Abbott’s opinion is being celebrated as vindication for years of complaints.
“I had a number of constituents come to me and say, ‘We think what the city is doing is in violation of the law,’” said state Rep. Paul Workman, a Republican who represents Southwest Travis County and asked the attorney general to examine Austin’s rules. “I think this has fairly broad implications.”
Save Our Springs Ordinance
The condo project approved last week illustrates how grandfathering disagreements have played out and how Abbott’s ruling could affect them in the future.
Lead developer David Mahn originally wanted to build 175 townhomes on 35 acres in Shady Hollow, a neighborhood off of Brodie Lane. He filed the first of many sets of necessary paperwork with the city in 2004. In 2006, as part of the long evaluation process, the city made a key determination: the property was outside the Edwards Aquifer recharge zone, and therefore not subject to Save Our Springs development regulations that would dramatically curtail what he could build. In 2008 Mahn secured permission to start building.
Then the national economy cratered. By the time the project resumed, enough time had passed that, under city rules, Mahn needed to ask for an extension for his permits and he obtained a one-year extension.
But it turned out — to Mahn’s surprise, according to his attorney — that the city staff had redrawn the area’s watershed maps and determined the property is under the purview of the Save Our Springs regulations, which are designed to protect the quality of water that seeps into the Edwards Aquifer by limiting development. When Mahn finished the 32 homes in the first phase of the project and sought permission to start the next steps, city officials informed him the permission he had originally secured had expired.
Irion, Mahn’s attorney, said state law allows Mahn to continue under the rules in place when he secured his first permit. But the city rules stated that the remaining portion of the project could cover no more than 15 percent of the remaining property with homes, roads or other “impervious cover.” Mahn had planned to cover roughly 60 percent.
Irion said that was a significant change because, under the Save Our Springs ordinance, Mahn was so limited that he could only break even by selling the remaining houses at prices no one would pay. And if he stopped construction to work out the problems, “he’s got to pay off a whole lot of people for breach of contract.”
Guernsey, the city planning director, said the city code often required his staff to deem projects subject to new rules. The only other choice they’ve had in many cases was negotiating a deal, he said.
“By ordinance, I could not grant administratively anything beyond that time frame” spelled out in the city rules, Guernsey said. Regardless of the causes, if projects took more than three years to finish, developers had to resubmit their proposals under city rules, and at that point, “You’re starting over.”
Faced with possibility of a lawsuit over the Shady Hollow project, the city staff negotiated a deal that gave Mahn most of what he wanted. Council members did not like the deal but approved it.
“In view of the letter (from Abbott), it seems to me that no public purpose would be served by tilting at this particular windmill,” Council Member Bill Spelman said just before the council approved the deal.