Back in the 1980s, the Austin City Council adopted something called the Congress Avenue Overlay. The Overlay, which applies to both sides of Congress Avenue between Lady Bird Lake and the Capitol, requires any portion of a structure over 90' high to step back at least 60' from Congress Avenue. Its purpose, City code tells us, is to "protect the historic character and symbolic significance of Congress Avenue and to enhance the pedestrian environment of the area." Austin City Code Sec. 25-2-165(A).
The Congress Avenue Overlay, until now, has been purely a creature of City ordinance, unlike the Capitol View Corridors, which are established by both City ordinance and state statute.
Austin's own Senator Kirk Watson wants to fix this. He's introduced a bill (SB 1272) that would prohibit the construction of new structures over 90' tall within 40' of Congress Avenue's eastern boundary and within 60' of Congress Avenue's western boundary. This would eliminate Council's discretion to weigh various public interests and grant variances from the Overlay.
I could understand such a bill being pushed by an Austin-bashing legislator from, say, Dallas, but this seems like a very odd piece of legislation for a former Austin mayor to propose.
I don't say this merely because I believe the Congress Avenue Overlay to be a bad bit of regulation (although I do believe it to be a bad bit of regulation). Fettering Council discretion like this is automatically bad for the City.
Let's assume for the sake of argument that requiring deep stepbacks along Congress Avenue vindicates some sort of public interest in the street's historic character or pedestrian charm or views of the Capitol. There are other interests at stake as well. These include the City's interest in redeveloping stagnant sections of Congress, its interest in encouraging the elimination of surface parking lots along Congress, and its interest in providing more room for hotels and office space along Congress. As things stand now, Council has the discretion to weigh the individual pros and cons of a specific project and decide whether the City's residents will receive a net benefit from a variance. Council also enjoys a lot of discretion to impose conditions on a variance, including design criteria that make the building more pedestrian-friendly.
Council has granted such variances in the past for buildings on the east side of Congress Avenue -- most notably, the Frost Bank Tower, for which it reduced the setback from 60' to 40'. (I'm sure it's no coincidence that Senator Watson's bill adopts 40' for the eastern setback rather than the 60' provided by City ordinance.) On the other hand, Council recently rejected a variance for a proposed hotel on the west corner of 8th and Congress. In the case of the Frost Bank Tower, Council concluded the benefits from the project outweighed the costs of allowing the intrusion into the setback. In the case of the Austin Hotel, it concluded the opposite.
The point isn't that one decision was right and the other wrong. The point is that Council has a bunch of interests to weigh, and in a specific case, the benefits of allowing a building to intrude into the setback might outweigh the "cost" of the intrusion. A bill like Senator Watson's strips Council of its ability to weigh various interests, and elevates the interest served by the Congress Avenue Overlay (whatever that is) above everything else.
What's more, Senator Watson's bill has no variance process. Anyone who wants to build in the setback will have to start by finding a senator or representative willing to sponsor a piece of legislation. That's probably too high a hurdle for any development project to jump. Such projects simply will not be proposed. This will make it impossible to track the opportunity cost of the Overlay in the long run. How can you keep a tally of foresaken projects when the projects are never even proposed?
There is value in a city having the right to make its own land-use decisions without having to appeal to state officials. That was obvious enough to Senator Watson yesterday, when he was quoted in the Statesman making similar arguments. Representative Paul Workman has introduced several bills that would limit cities' authority to restrict impervious cover, among things. According to the Statesman:
State Sen. Kirk Watson, D-Austin, the bulwark for Austin against such proposals, said the Legislature shouldn’t step into what he considers a city matter.
“People who oppose development rules that Austin has lived under for more than 20 years have every right to try to change them through traditional democratic means at City Hall,” Watson said. “But when they start to turn legislators — most of whom live a long way from Austin — into a city of Austin appeals court, it starts to look a little undemocratic. That’s why the Legislature has been so skeptical of Austin-bashing bills in recent years. And it’s why I think legislators will be skeptical of these, as well.”
If a city should have the right to regulate impervious cover limits in its boondocks, then shouldn't it have the right to regulate its own main street? I don't understand how Senator Watson can oppose Workman's bills under a "cities' rights" theory while proposing to micromanage his own hometown's main street. Representative Workman's bills would apply to every city in the state, so they at least have the appearance of being evenhanded; Senator Watson's bill targets a specific street in Austin.
Austin City Council is more than capable of weighing the various public interests at play on Congress Avenue. The City should be left alone.
