Austin Contrarian

Here's a strategy for preserving the Warehouse District

I’ve seen only two serious proposals for preserving the Warehouse District.   Neither, it seems to me, has much chance of working.<

Both involve preserving the entire district (the precise boundary of which has yet to be defined).   The first strategy is to designate the district as a historic district, which would give the property owners tax abatements but no other compensation.   The second is preserve district properties but compensate property owners with transferable development rights.  These would be credits for additional floor-to-area ratio (FAR) that could be sold to developers elsewhere to increase their entitlements.

But I think the property owners would bitterly resist both.   Neither provides enough compensation to make them happy.  Transferable development rights would have little value because FAR is not particularly scarce downtown.   Because approving a district over the property owners’ objection would require a super-majority vote on Council, neither is likely to happen.

But I think there might be a way for the city could do this on the cheap without any contentious public hearings.

The individual lots in the Warehouse District are too small to redevelop unless they are assembled into larger lots because you can’t get much density with just a partial block.   Because the blocks in this district are so short (only 300’ or so), a developer would probably have to assemble most or all of a half-block.   If the city were to purchase conservation easements from strategically located property owners — in the middle of the blocks, say — it could forestall the assembly of large parcels and thus the possibility of redevelopment.

At first blush, this might seem an expensive strategy.  Property owners would demand a premium to sell a conservation easement on their lots.  After all, if a developer were to approach them to assemble a large tract, they would demand a premium — which the developer would have to pay because it would need every lot on the block.

But a conservation easement would be different.  The city would only need one or two per block. Once it bought one easement, the redevelopment premium for the other properties would vanish.

Suppose the city were to approach three owners of centrally-located lots.   It could offer the following deal:   “We will buy one, and only one, conservation easement.  We will compensate you with tax abatements and no more than $_________ in cash.   Let the (open, multi-round) bidding begin.”

And property owners should bid down the price.   Getting cash and a permanent tax abatement in exchange for continuing business as usual is a pretty sweet deal.  But even if a property owner wanted to hold out for a redevelopment premium someday, he’d have to worry about his neighbor.   If his neighbor took the deal, then the property owner would lose forever any chance of a redevelopment premium and the cash and tax abatements.   No, he’d be better off trying to underbid his neighbor.

Open, multi-round bidding would drive down the cost of the conservation easement.  In fact, I’m not sure there’s an equilibrium price above zero.

Note this strategy would not require any rezoning, special districts or even public hearing, other than authorization and approval of the purchase.

Perhaps the property owners could collude to avoid being pitted against one another.  A high initial offer might cause one to break ranks, though.

If this strategy succeeded, I’d still offer all of the property owners tax abatements in exchange for agreeing to a historic district.  The city shouldn’t be too prickish.

Watch what people do, not what they say

A mischievous Katherine Gregor posted this piece about Berkeley’s environmentalist NIMBYs on the ANC listserve just before the 4th of July weekend.  The debate over there is just now petering out.

The point of the piece was not that all environmentalists are NIMBYs.  Just the opposite, in fact.  Berkeley activists have blocked new housing and development for many years using environmentalist and affordability rhetoric.  It finally occurred to the more thoughtful environmentalists in the area -- the sort of people who, you know, actually worry about the environment -- that if Berkeley doesn’t make room for newcomers, those turned away will not teleport into another dimension but instead will find some other place to live.  Probably in distant suburbs where they will eat a lot of green space and burn a lot of gasoline.  It nicely illustrates the principle that you should watch what people do, not what they say.  If you are a green then you will fight for denser infill development at least some of the time.  If you claim you are a green but fight infill density tooth and claw, then you are not a green; you are merely anti-growth.

We don’t normally see environmentalist rhetoric deployed in small, garden-variety neighborhood spats.  Homeowners in those kinds of disputes are likely to be perfectly honest about the fact that they don’t want new people or a different class of people in their neighborhood, or that they like things just the way they are, or that they’re worried about their property values.  It’s not always pretty, but at least it’s honest.

An infill developer's perspective

I do not have any firsthand experience with the development or permitting process in Austin.   Frequent commenter "Don Johnson," a local infill developer, does.   He left the following comment in response to my entry on Austin's gerrymandered zoning districts.  I think an infill developer's perspective on the development process in Austin is interesting, so I repost it here.

If I may take this opportunity to vent a little more about our subdivision process here in Austin and why central urban infill is so difficult.  The owner of Red Bird is in store for much more than this zoning fight.  Even if they are granted SF3 they can look forward to a subdivision process where they dump about $20k fee-in-lieu of water quality controls and detention if they can't get a waiver.  They will need to hire an engineer.  It boggles my mind that Austin Code currently expects residential lots to make room for detention ponds and water quality controls and how high the fees are to bypass this.  Imagine your residential street actually lined with big pits in every front yard like you see outside of commercial properties.  Not to mention the argument that this piecemeal approach to detention can actually have negative effects on downstream flow.  "Regional" detention and WQ seems more rational; i.e., build a larger facility to serve the neighborhood as a whole (which allows for a more macro design approach).

Then you have the ten subdivision reviewers who seemingly have conflicting goals in what they want to commandeer or impose on the applicant.  You have the ROW reviewer wanting to commandeer 10' of property at the frontage, the transportation reviewer wanting you to build sidewalks to nowhere, the electric reviewer wanting to commandeer another 10' in easements, and heaven forbid you have any trees because you can't build near them or cut them down (although the electric company may cut it down after you try to save it).  Then throw building set back requirements, impervious cover limits, and the McMansion envelope on top of everything.  Your clean palate dwindles down to an unworkable anomaly in the end and hence some of the weird $400k houses around town with single car carports and terrible layouts.  I won’t even go into some of the funny catch-22 scenarios that come up between reviewers leaving the applicant to sort it out in order to move forward.

What you end up with is really difficult use of space, and you are in it for about $20k to $30k in city fees and related expenses as well as 6 months minimum in holding costs before you even start really.  Or maybe you are in for more than that if you were smart enough to include an architect in the process so that you can start heading off the design problems early.  All this for something with such subtle impact as taking a 20,000sf lot and cutting it in half to build two duplexes instead of one (and really with the same exact limits of construction pre and post subdivision, just with an extra two residents).

You would also be amazed at how many lots the city considers "illegal".  Go look at any TCAD plat map and look around for "tildes" that bring portions of lots together.  Or when the lot legal description reads as part of two lots (Examle: W25ft of lot 24 and E25ft of lot 23.)  This would be filed under the "landmine" comment [in this entry -- AC] as well.  This can take you down many an unexpected road due to grandfathering scenarios, and notification issues that are built into code, as well as more carrying costs as it gets sorted out.  I won't get into it, but beware.  Trust me.

It sure is fun I'll tell you what.   The sad part is that by the time you actually start concentrating on the house design and construction, you have used up about 60% of your juice (energy and emotion), and really you need everything you’ve got in construction.

People not involved in this stuff will brush all of this off and paint builders/developers as greedy for complaining, but I'm telling you it is almost impossible to get from old stock to newer up to code stock in a streamlined affordable manner because of our system in Austin.  All the while the neighbors are nipping at your heels on top of this.  And this is why you see trees go down on Saturday.  The builders would love to stay off trees (they add value), but every other code seemingly begs you to cut down trees.  That is simply one negative manifestation, though.

Gerrymandering

Although I've been paying a lot of attention to the Red Bird Lane case lately, there is nothing unusual about it.  Austin homeowners are always up in arms over proposed zoning changes.   And who can blame them?  Our land-use regulations have conditioned homeowners to expect "protection" from every piddling change in use.  

Take our residential zoning.  Ignoring the Lake Austin district, there is Rural Residence, SF-1, SF-2, SF-3, SF-4A, SF-4B, SF-5 and SF-6.   If I counted right, that's eight.   And then we have six different multi-family districts.  Fourteen grades of residential districts.  Oops.   I forgot the mobile home district.

But fifteen districts apparently are not enough for us to make the really fine distinctions needed for a happy, harmonious city.   No, we also have historic district overlays, waterfront overlays, mixed-use and VMU overlays (these aren't the same thing), NP combining districts, traditional neighborhood districts, neighborhood conservation combining districts, transit oriented development -- many of which we had to invent because we had squeezed too much flexibility out of the land-use code.   Then there is the raft of special uses, including "urban homes," "cottages" and "secondary apartment special uses."  The McMansion ordinance that applies to central Austin.  And let's not forget all of the private and public covenants extracted over the years in exchange for rezonings, the equivalent of land mines abandoned in an old battlefield.

We make these fine distinctions, of course, so we can vary the permitted uses from block to block, sometimes from lot to lot.   (Here's an example of gerrymandered commercial uses on South Lamar.)  An SF-2 lot sits next to an SF-3 lot with a restrictive covenant.   Both are in an NP-combining district that allows secondary apartment special uses but not urban homes or cottages.  On the rear of the block are three different flavors of commercial mixed-use-NP and multi-family zoning, while one block over from that is a mixture of MF-2 and MF-3 and SF-5, and a block over from that a small infill "urban home" neighborhood.  Four-plexes here, duplexes and single-family homes there.  If you kick a can in this town, it will land in a different district.   This is not "zoning"; it is gerrymandering.

We don't need to create a separate district for every flavor of housing.   That has just gotten us a byzantine patchwork of stifling micro-regulation.   I see no evidence that it has enhanced the quality of our housing stock or the appearance or livability of our neighborhoods.  And this over-regulation ultimately is self-defeating.   Regulations shape expectations.   If every lot in a neighborhood can accommodate a single-family home and a duplex, then the average homeowner won't get mad when a neighbor starts building a duplex.   But eliminate the duplex entitlement and that same homeowner will go ballistic if someone asks for it.  Zoning entitlements have a strong endowment effect, which should be no surprise since they are in a sense a collective property right.   We've created the expectation that we can and will recognize trivial distinctions between uses.   It is no wonder that land-use issues are so contentious in this town.

More on Red Bird Lane

I'm surprised by the reaction sparked by my Red Bird Lane entry.   I continue to believe this one is not a close call; I provide additional details below to show why.  I need to do this, too, because I made an error in my original entry which a commenter pointed out.   I corrected the error in that entry, but I don't think the correction is getting through to readers.

The property owner wants to change the zoning of his property from SF-2 to SF-3.  SF-2 and SF-3 have the same minimum lot sizes.   This zoning change will not allow the property owner to subdivide his lot into smaller parcels.   (That's the error I made in my first entry).  Lot size has nothing to do with this case.

The only thing at issue is whether the property owner can build duplexes on his property rather than single-family homes.   Here is why this should not be at all controversial (despite the fact that it obviously is to some of the neighbors):

1. The property immediately adjacent to the east is zoned SF-3.  The owner of that property can subdivide it at any time and build duplexes on it.

2. One of the two properties immediately across the street is zoned SF-3.  The owner of that property can subdivide it at any time and build duplexes on it.

3. The property adjacent to the west, while zoned SF-2, is undeveloped.  A duplex will not violate the "character" of an undeveloped lot.

4. The entire neighborhood is in an NP combining district. This means that a secondary apartment special use is permitted as a matter of right.   The developer, or any of the surrounding property owners, can build a single-family house and a separate cottage up to 850 sf.  It is my understanding that the property next door and one across the street have these secondary dwellings.

5. According to the staff report, the properties to the south (on the back side of the block) are zoned GO-MU-NP (General Office/Mixed Use).  Today they contain a child-care facility and beauty salon in addition to a single-family home but could obviously be redeveloped far more intensely at any time.

To summarize, aside from the vacant lot to the west, only one of the adjacent properties, including those immediately across the street, is zoned solely for single-family homes (and, as noted, a secondary, detached apartment is allowed even on that one).  This is absolutely the smallest, incremental upzoning possible and it is perfectly consistent with the surrounding uses.  

Sorry, this is not a close call even if one ignores the development activity in the area (such as the Bel Air lofts) or its location just one mile south of Ben White.  This is why I say this case exemplifies the problems with our zoning process.

A couple of other points.  One justification that has been raised is the neighbors' concern that duplexes will invite renters into the neighborhood. The city should not use zoning to regulate the form of tenure.   First, the city can't do it; it has no control over whether the owner occupies the property or instead lets it out to rent.  Second, the assumption that renters make bad neighbors is false.   I have a rental house just a mile or so from this neighborhood (zoned SF-3) with a model tenant.   One of the houses across my street is a rental house, as is one two doors down from me; another around the corner is being advertised for rent.  They are all good neighbors.  Some people rent -- a good thing, as the recent housing collapse shows.   There is nothing wrong with renters.   The city shouldn't be trying to preserve neighborhoods as a sanctuary for homeowners.

Last, I know the folks in this neighborhood are not the hardcore ANC types.  That doesn't mean they have a good case, though.

Shady Grove needs a parking variance

As I pointed out in one of my entries on the noise ordinance, some restaurants may have trouble switching to the cocktail use to get the higher decibel limit because they will have to bring themselves up to code requirements for a cocktail use.  Shady Grove is an example.  Here is its application for a variance from the parking requirements for cocktail lounges.  Kedron Touvell twitters that the application goes to the Board of Adjustment on Monday.

Obtaining a variance is no mere formality.  The applicant is supposed to meet stringent standards -- including unique hardship -- which the Board of Adjustment must enforce to avoid waiver arguments in other cases.  The BOA is subject to political pressure like any other institution, though, so my guess is it will grant the waiver.

There is much more on the permitting process and obstacles at the Austin City Permits blog.

Red Bird Lane

This isn't CWS versus Save Town Lake, but it does exemplify what is wrong with  Austin's zoning process.

Developers Leslie Moore and Magdalena Rood want the city to rezone a one-half acre lot near Stassney and South Congress from SF-2 to SF-3.  (Moore and Rood redeveloped the small cottages across from the Texas School for the Deaf into the eclectic shopping area there now.)

This shouldn't be controversial.  Almost all of the single-family properties in the area are zoned SF-3.  SF-3, in fact, is the predominant single-family district in Austin.  This neighborhood is fairly central these days -- a little over one mile south of Ben White.  The area is close to three major arterials and several bus stops.  It is a natural place for denser development.

View Larger Map

But the neighbors are having none of it.  SF-3 allows minimum lot sizes of 5,750 sf for single-family homes rather than SF-2's 10,000 sf minimum.  Even worse (from the neighbors' perspective), SF-3 allows duplexes.  The neighbors object to the upzoning because it would allow Moore and Rood to subdivde the property into three lots and build as many as five units (two duplexes and one single-family home).  [See correction below.]  They object even though there is a duplex next door and a duplex across the street.

They cite that old standby, "neighborhood character."  Go with what's worked elsewhere, I guess.  But In Fact Daily's coverage (gated) suggests they're worried about something else:

“We met with some of our neighbors and listened to their objections. The things that they were concerned about were things like not wanting to have renters in the neighborhood. They want people who are going to be homeowners in the neighborhood,” Moore said. “Well, I don’t think there’s ever been anyone of us who can guarantee that that’s going to happen, and, besides that, I think that there’s a lot of us out there who are renters, and there’s nothing wrong with that.”

Homeowner Andrea McCartney, speaking on behalf of her neighbors, said her neighbors did not oppose growth as long as it was controlled growth. In this case, the lot was located on a block in her neighborhood where duplexes and condominiums have stayed on the market for months.

The Planning Commission has already approved the rezoning.  The case came before City Council on June 18, but it apparently is so controversial, so contentious, that Council postponed it to July 23 so the neighbors and Moore can continue to negotiate (despite the apparent impasse).  And, because the neighbors have filed a valid petition in opposition, approval will take a Council super-majority.

And so we are handed a nice illustration of all that is wrong with zoning in Austin:

1. Systematic under-zoning.  Our zoning districts are gerrymandered, sometimes block by block.  This allows each district to be zoned for the least intensive use compatible with the surrounding uses.  Larger districts require more intensive zoning in order to accommodate a broader range of uses.  For example, the city had to carve out this tiny, six-block "neighborhood" in order to give it SF-2 zoning; a larger district would have required the city to stick to the SF-3 zoning in the surrounding neighborhoods.

2. Neighborhood groups that exploit zoning regulations for improper purposes.  Zoning was not intended to regulate a neighborhood's mix of renters and homeowners.

3. A zoning process that dissipates enormous resources on every trifling dispute.  By the time this is over, this one single-family lot will have consumed a ot of Planning Commission and City Council time, not to mention the time of city staff and the property owners themselves.

4. A zoning process that gives undue weight to neighborhood objections.  Because the neighbors have filed a valid petition, simply changing this parcel from  one single-family classification to another will require a Council super-majority.

Austin is growing.  All central neighborhoods face -- and will continue to face --nearly constant development pressure.  Our goal should be to help our neighborhoods gracefully transition to denser, more urban places.  Our zoning regime does the opposite, though.  It encourages neighborhoods to object to every upzoning, no matter how flimsy the pretext.  Council approves upzonings in a scattershot manner, embittering one side or the other.  We're left with gerrymandered districts that are themselves pockmarked with stifling overlays, covenants and spot zonings.  And the property owners are guaranteed another trip to Council whenever they want to change the use.

Correction:  Commenter Don Johnson corrects me that SF-2 permits a minimum of 5,750 sf, which is the same as SF-3.  (SF-1 has a 10,000 sf minimum.)  This lot is almost 20,000 sf, which theoretically is large enough for three lots even under SF-2.  I suspect, however, that the requirement that all lots in a subdivision front a public street, combined with the 50 foot minimum lot width, will prevent subdivision into three lots.

Update.

We're number six

Smarter Cities (NRDC) has released its ranking of the most sustainable cities.  Austin is sixth!

Of course, like most city rankings, this one is based on an arbitrary weighting of an arbitrary list of factors. For example, they include "standard of living" as a category. What does this have to do with sustainability?.   Unless the goal is to jack up the ranking of wealthy California cities.

They omit a variable for land-use patterns. If you're worried about open space -- and I'm sure NRDC is -- this omission is inexplicable. I'm more sanguine about suburban development than many, but even I am surprised by this omission.

But mostly the problem is how they weight the factors. If climate change is the most pressing problem facing us today, then shouldn't energy consumption get the most weight?  I think it should.  And Austin fares very poorly on energy consumption.  It's 100+ degrees here in the summer.   My air conditioner runs virtually non-stop, and will until late September.  Adding a relative handful of low-energy buildings to the existing housing stock won't budge our average energy consumption.

Ditto with transportation. TTI just yesterday released a report identifying Austin as one of the most congested cities its size. I don't know what NRDC means by "sustainable" (I think the word has essentially lost all meaning through overuse), but does NRDC really believe that spending an inordinate amount of time in traffic, burning extra fuel, is a sustainable transportation pattern?

I could go on. Water. Yes, we've got pretty stringent water controls. But then we live in an area that is frequently parched. Each Austin resident puts a greater strain on local water resources than each resident of, say, Cleveland.

This will piss a lot of Austinites off, but probably the greenest Austinite is the one who moves to a city with a milder climate, more water, and less congestion.

Morrison and I finally agree on something

City Council approved the Village of Little Texas affordable housing project at today's meeting.  A whopping $3 million and a permanent exemption from property taxes breaks for 50 affordable units.  Laura Morrison cast the lone nay vote.  For once, we agree.

No finish line

Most of the recent discussion of the outdoor music venue ordinances by me and others has focused on the obstacles they set for restaurants like Shady Grove.  But the ordinances' more long-lasting impact will be the change to the permitting process. 

Before the new ordinances were enacted, eligible venues were entitled to an outdoor music venue permit as a matter of right.  Outdoor music venues must now obtain the discretionary approval of a city functionary.  The ordinance directs the city official to consider factors such as neighbor complaints, proximity to other uses and noise mitigation efforts.  Neighbors and neighborhood associations are entitled to notice and the chance to voice their opinions.  Every existing outdoor music venue will have to run this gauntlet when it seeks its next permit renewal.

But, perhaps more importantly, every outdoor music venue will have to run this gauntlet every year.  The new ordinance does not grant venues an automatic renewal.  A venue will need a discretionary permit in year one, year two and year 20.  There is no finish line it can cross to declare victory. 

Theoretically, a music venue could obtain a permit renewal for five years straight but, thanks to continuing neighborhood pressure, be refused a permit in year six.  Nothing necessarily would have to change:  it might play the same kind of music, to the same crowds, during the same hours, with no violations of the decibel limits.

Now, I hope city staff will administer this thing consistently.  It should allow outdoor music venues that receive a permit in year one to receive a more or less automatic renewal in later years unless it violates the noise limits or there is some significant change in the neighborhood.  But no matter what city staff does, the permitting process is now an intrinsically political one.  Venues which draw opposition in year one will, more than likely, draw opposition in years two, three and four.

A likely (and perhaps intended) consequence of this ordinance will be to deter applications for new venues.  Making the up-front investment will be less attractive if the venue's right to operate will require annual, discretionary (and intrincially political) approval.