Austin Contrarian

Owning the land development code

In retrospect, CodeNEXT failed not because staff produced a bad land development code, but because Council did not instruct it to produce a better one.

To be sure, Council did the right thing last summer when it killed the last iteration of CodeNEXT. CodeNEXT 3.0 was a bad code. It remained a bad code even after the Planning Commission’s heroic effort to improve it. The text was bad; the map was worse. The environmental and transportation codes would have made infill development harder, not easier. Design professionals panned the draft. The development community quietly opposed it. And the pro-supply, urbanist faction gave it tepid support at best. The Austin Neighborhoods Council and the like opposed the draft, too, but they dislike the idea of a new code altogether and will likely oppose any deviation from the status quo no matter what.

So the last iteration of CodeNEXT had lots of opposition but no true constituency.

Staff had the opportunity to produce a code with a constituency, but it floundered. Its handling of “missing middle” housing is a case in point. Imagine Austin directs that the land development code be liberalized to allow a variety of missing middle housing types. It calls for the “introduction and expansion into the market of housing types such as row houses, courtyard apartments, bungalow courts, small-lot single-family, garage apartments, and live/work units.” But after providing a modest amount of such housing in draft version 1.0, staff progressively wrung it from the succeeding drafts. Version 3.0’s most radical innovation was to allow accessory dwelling units with duplexes; this was literally the smallest possible liberalization of the status quo. Version 3.0 otherwise limited missing middle housing mostly to the few places where it is already permitted. Staff thereby dampened the support of those who want more missing middle housing. It gained no allies in return.

The prevailing opinion seems to be that there was a breakdown in the public process, as if a little more citizen input could have kept staff from producing a draft that made nearly everyone unhappy. But there was no problem with the public process. Everyone who wanted it got his say. There were ample more opportunities to participate at every stage of the process.

Public input began with Imagine Austin itself. The comprehensive plan—a broadly pro-housing document—was the culmination of uncountable hours of work by staff and citizens. Its development was a model of community engagement. And it was approved unanimously by Council.

The CodeNEXT process started almost immediately after Imagine Austin was adopted. Six years of public input ensued. I served on the Citizens Advisory Group from its inception in 2013 through late 2014. We held monthly meetings at which citizens were invited to speak; these meetings continued into 2018. But one didn’t have to attend CAG meetings to be heard. There were open houses. There were “listening sessions.” There were community character sessions, where residents were invited to identify types of housing they wanted for their neighborhoods. In the middle of the process, staff issued policy prescription papers, triggering new rounds of public input. There was outreach targeted to affordable housing and community organizations. The draft codes and maps were published online in a format that allowed line-by-line comments. The city published “white papers” by citizens on its CodeNEXT page. And, of course, there were numerous briefings to Planning Commission, the Zoning and Platting Commission, and City Council itself.

The public process did not produce consensus, of course. It was unreasonable to expect consensus given that Austinites want different things. But the public process did identify the key areas of contention such as parking, missing middle housing, and compatibility regulations. These issues were endlessly analyzed, dissected and debated.

But although staff gathered public comment at every step, it never got any direction from Council. It was left to chart a path on its own, and it settled on a draft that made no one happy.

Council began to debate these core issues only after it received the draft from Planning Commission with Planning Commission’s scores of amendments.  It was only at this point—supposedly, the final stage of the code adoption process—that Council began to wrestle with fundamental issues such as how much housing capacity the new code should provide. Council has adopted a strategic housing plan that calls for 135,000 units of new housing over the next 10 years. Should the new code and map permit exactly that number of units? Twice as many? Three times as many? How do we measure zoning capacity? It was clear from their initial discussion that Council members did not agree.  

But this is perhaps the concept that frames every other issue. It is not merely a technocratic issue. It is a matter of philosophy. A code and map that provide the capacity for another 270,000 housing units (with the assumption that only a fraction of those units will be built) look completely different than a code and map that provide the capacity for exactly 135,000 units. The latter guarantees that fewer than 135,000 units will be realized, and that what is built will be expensive. A housing unit capacity analysis that is based on zoning constraints will yield a misleadingly high capacity. An honest analysis will consider constraints such as drainage and water quality regulations, which sometimes limit density as effectively as zoning. (We should also recognize that any planning that assumes there will be no demand for growth ten years from now is foolish, guaranteeing a housing shortage twenty years from now.)

It should not have been left to staff to decide this issue, or the other central issues. Ultimately, Council will settle these issues, either by deferring to staff’s recommendation or choosing another course. Council will settle these issues even by doing nothing—sticking with the status quo is a policy choice, too.

Council has directed the city manager to recommend a process for restarting the code. I have no idea what the city manager will propose. But it is crystal clear what the process ought to be.  Council must provide direction on the key areas of contention before staff performs any more work on the code. Council should return to the conversations it began having shortly before it pulled the plug on CodeNEXT. It should debate zoning capacity, missing middle housing, parking, the density bonus program, and the like. It should then adopt a resolution providing general but unambiguous guidance on these issues. It will be up to staff to implement Council’s policy direction. That is staff's proper role.

We do not need one more minute of public input for Council to adopt such a resolution. It has all of the public input it needs. Indeed, the six-year public process was not a waste, even if it was frustrating. Thanks to the voluminous public input, the multiple drafts and maps, and Planning Commission’s recommendations, we can identify the key areas of contention.

I’ll be writing about what I think such a resolution should cover. Others can probably produce a better list than I can. But regardless of what is on the list, it is imperative that Council provide guidance now. It should not kick the mess back to staff for a “restart” on the false premise that one more round of public process will fix the problems with staff’s draft. Council, not staff, must own the land development code.

Keep micro units in the suburbs where they belong

Back in March, Council instructed Staff to draft an ordinance reducing the barriers to "micro units"  -- mainly, density restrictions and parking minimums that raise the average cost per square foot of small apartments more than large apartments. 

Staff is now pitching its proposal on the boards-and-commissions circuit. Staff is suggesting that  the required parking for "micro units" be reduced to 0.6 spaces per unit, and the minimum site area be reduced to 400 sf per unit.

The proposed parking reduction is particularly timid. Efficiency apartments today require 0.8 parking spaces per unit -- at least in the urban core, where they tend to be built  -- so Staff's proposal would merely reduce the required parking by one space for every five units.  This seems like more of a gesture toward lowering the parking barrier than a sincere effort to lower the parking barrier.

The minimum site area reduction is better. The current minimum is between 800 sf and 2,500 sf per unit in multi-family districts, depending on the precise zoning. As a practical matter, lowering the minimum site area to 400 sf per unit would allow micro-unit developments to achieve a floor-to-area ratio of just 1.25:1 or so (depending on the amount of common area), so this would not open the door to extradordinarily dense development. It would likely make existing height and impervious cover limits the limiting factors for micro-unit developments, though, particularly given the minimal reduction in parking. 

But the biggest problem with Staff's proposal is that it is stingy with eligible parcels. Council's resolution called for reducing the barriers for developments located on Core Transit Corridors and Future Core Transit Corridors or within Transit Oriented Development Districts. 

Staff is proposing to exclude all Vertical Mixed Use parcels, to exclude parcels within Transit Oriented Development Districts, and to limit the parcels to those with actual frontage on CTCs or FCTCs.

The result is that very few parcels are eligible, particularly in the central city where these sorts of development are most needed.  

Staff has prepared maps showing which parcels would be eligible. Here is north Austin:

And here are the parcels eligible in south Austin:

 

In the true urban core (i.e., north of Ben White and south of 183), there are precious few eligible parcels. There are only three eligible sites on all of South Lamar -- one of which is the site of Post's new VMU-style development. The clump of eligible parcels just north of downtown are all on University of Texas property. UT doesn't need the City's permission to redevelop its property (and some of these parcels, such as  DKR stadium, aren't likely to be redeveloped anyway). 

The largest clusters of eligible parcels are instead in unmistakably suburban locations, such as along Slaughter in far South Austin, along South Congress south of Ben White, and along Jollyville Road, with smaller clusters on South First near Ben White and in east Austin. 

Staff is thus proposing to lower the barriers to micro units mainly along a few choice suburban streets rather than in the central core. Was making small units relatively more attractive in the suburbs than the core really what Council had in mind?

Reducing the barriers to garage apartments

Council member Riley and co-sponsor Mayor Pro Tem Cole are is proposing to make it easier to build accessory dwelling units (e.g., garage apartments) smaller than 500 square feet.

The garage apartment regulations in Austin are a mess. Garage apartments are ostensibly legal on SF-3 lots with at least 7,000 sf (and on smaller lots in some neighborhood planning areas). But the Land Development Code imposes all sorts of regulations that often turn out to be de facto barriers. For example, the LDC requires a secondary apartment to be served by a driveway at least 9 feet wide unless the apartment is on an alley. Some houses are set too close to the property line to allow a driveway, so secondary units are essentially forbidden on these lots. Even when there is enough room for a driveway, the driveway chews up the lot's ration of impervious cover, and costs a bunch of money to boot.

Ditto with parking. Lots of single-family homes in our older neighborhoods were built without parking. Adding a secondary apartment not only requires adding a parking space for the secondary unit, but also adding two parking spaces for the principal dwelling -- even if the principal dwelling isn't being enlarged at all. (At least, that's how I've been told staff is interpreting the Code.)

The draft Code Diagnosis calls out our secondary apartment regulations in a section entitled "Lack of Household Affordability and Choice": 

As one of the key Missing Middle housing types, secondary apartments can provide increased density in existing neighborhoods without sacrificing neighborhood character. However, the LDC places many regulations on new units that could serve as a barrier to their development, including requirements for lot size, a paved driveway, on-site parking (even on lots that do not currently have off-street parking), site configuration, and water supply, etc. In many neighborhoods, secondary apartments are not allowed, reducing the flexibility homeowners have to stay in their neighborhoods. However, in these same neighborhoods, detached garages with bathrooms but not kitchens are allowed. These detached garages sometimes serve as temporary housing. If a diversified housing stock is a city and community goal, regulations for secondary apartments could allow for pre-approved designs, streamlined/user-friendly permitting, impact fee waivers, and the “grandfathering” of existing site elements, as long as they don’t pose a health and safety hazard.

Riley's resolution would direct Staff to draft Code amendments that eliminate the driveway and parking requirements for units with less than 500 sf. It would also convene a stakeholder group to identify other possible regulatory barriers to these small units. 

This is great. But why limit this to units with less than 500 square feet?

Garage apartments and secondary apartments are capped at 850 square feet. Fashioning a specific set of regulations for 500 sf units will add another layer of complexity to an already complex Code: one set of regulations for structures that have 500 sf or less; another set for structures that have between 501 and 850 sf.  The Code already distinguishes between secondary units allowed as a matter of right on SF-3 lots with at least 7,000 sf ("two-family residential use") and secondary units allowed as a matter of right on smaller lots in certain neighborhood planning areas ("secondary apartment special use"). We'll need a special matrix just to keep up with the garage apartment regulations.  

What would we get in exchange for this extra complexity? Obviously, we'd get fewer 850 sf units and more 500 sf units. But it's not at all clear that 500 sf units are more affordable than 850 sf units. 850 sf units are big enough for two bedrooms, which means they're more easily shared by unrelated roommates. Splitting the rent of an 850 sf unit is often be cheaper than shouldering the rent of a 500 sf unit by yourself. 

We'd also get slightly larger principal dwellings. The McMansion ordinance limits the gross floor area on central city single-family lots. A 7,000 sf lot, for example, can hold a maximum of 2,800 sf of buildable space, including the floor area of the secondary unit. Are we better off encouraging 2,300 sf principal dwellings with 500 sf secondary units? Or are we better off with 1,950 sf principal dwellings and 850 sf secondary units? I'm not sure either question makes any sense. Regardless, it's hard to see how encouraging larger principal dwellings is a sound affordability policy. 

The only "downside" to eliminating the barriers across the board is that two-bedroom units are more likely to be inhabited by a tenant who parks on the street. But if we intend to dismiss any Code reform that increases the demand for on-street parking, then we will leave ourselves precious little room for real reform. Secondary units are a relatively unobtrusive form of infill that can be designed and built quickly, that allow families maximum flexibility over the several stages of their lives, and that provide options to renters who would like to live in the central city without living in a large apartment complex on a busy street. Our goal should be to manage trade offs rather than pretend they can be avoided.

Update: Although the staff posting says that Mayor Pro Tem Cole is a co-sponsor, I understand that was an error, and that Councilmember Martinez is a co-sponsor.

Update 2: Steven Yarak and Dan Keshet have more. See the AURA blog, too.

Customizing the Code

I have no idea how the Land Development Code consultants might go about customizing the Code for different neighborhood types, but Austin's old land development code suggests one interesting possibility.

First, it's necessary to understand the difference between use regulations and site development regulations. Use regulations govern what types of activity can take place on a piece of property; site development regulations govern the size, setbacks and density of the structure.  

In the current code, each zoning classification determines both the use and the site development regulations. For example, SF-3, the standard single-family zoning district, specifies the allowable uses of the property (single-family home, duplex, small day care, and a few other things) and the mandatory site development standards (various side setbacks, maximum height, square footage, impervious coverage).

The use regulations and site development regulations were not always commingled in this manner, however. Once upon a time, Austin zoned for use independently of height and density. That is, it had zoning districts that were almost exclusively concerned with uses and it had "height and area districts" that were mainly concerned with the allowable height, setbacks and density. In 1968, we had a "First Height and Area District," a "Second Height and Area District" and so on through the "Sixth Height and Area District." Each had different maximum heights and densities.

In theory, this could allow a lot of customization. The city could allow more density in central neighborhoods, where demand is greatest, without having to create a separate zoning category for each neighborhood. Smaller lots, slightly taller buildings, and slightly denser apartment buildings make more sense in high-demand central neighborhoods, particularly when these high-demand neighborhoods already tend to have smaller lots and slightly denser apartment buildings, if not taller buildings.

Austin eventually abandoned height and area districts. If I had to speculate why, it would be that a given zoning district tended to be associated with a given height and area district, and so there was little customization as a practical matter. Single-family neighborhoods, in particular, were almost always placed into the lease dense First Area and Height District, regardless of where they were. Someone probably eventually figured out that breaking out the use and site development regulations wasn't helping the City planners finesse anything. To the extent that special rules were needed to handle downtown and the neighborhoods immediately surrounding it, it was simpler to create a couple of new zoning districts (CBD and DMU) and just chuck the Height and Area Districts.

Here is the 1968 map of the Height and Area Districts, which supports this thesis.

 

Here is a pdf version of the map with nice detail (warning: 10 MB file!), and the 1968 zoning map for comparison.

Here is a close-up of the downtown area. You can see the antecedents of today's CBD districts (the solid-shaded areas) and DMU districts (the areas along West Sixth, just west of CBD).

Most of the rest of the map looks about like the map below, though -- mostly little squares (First Height and Area) for single-family neighborhoods, and something more generous (like the checkerboard pattern, for the Sixth Height and Area) for commercial uses:

Again, the City planners likely concluded that maintaining two separate maps just wasn't worth the trouble.

Perhaps this was an idea ahead of its time, though. Austin was still a pretty small city back in the 1940s, 1950s and 1960s. There was less diversity in neighborhood types. Perhaps its worth thinking about separating our use and development regulations again, allowing the latter to be calibrated for different types of neighborhoods.

H/t to the Austin History Center, for help locating and reproducing these maps.

Garage Apartment Bleg

One of my responsibilities as a member of the Citizens' Advisory Group for the Land Development Code rewrite is to gather public input to share with other CAG members, staff and the consultants. One topic in which I'm particularly interested is garage apartments and  alley flats -- "secondary apartments" or "two-family residential use" in Code parlance.

I'd like to hear about the obstacles experienced by homeowners and developers who have tried to build them. It can be hard to tell just by reading the LDC what the real barriers are to a particular form of development. For example, I've heard from a number of people that the requirement that the secondary unit be served by a paved driveway can be a real problem, and not just because of the added expense -- sometimes there's no way to squeeze a driveway between the principal dwelling and the lot line. I've heard the parking requirement can be a problem, particularly when the principal dwelling lacks off-street parking and staff requires the owner to add off-street parking for both the secondary unit and the principal dwelling. Austin Water apparently sometimes requires the owner to replace the service line to the principal dwelling before a certificate of occupancy can be issued for the secondary unit. These sorts of obstacles aren't immediately obvious just by reading the Code. And the LDC rewrite consultants can't recommend solutions to problems they don't know about.

So if you've recently added or tried to add a secondary unit, please shoot me an email and copy [email protected]. Give me a brief idea of where your property is, your lot size, what you were trying to build, whether you were successful, and a brief summary of the problems you faced. Please be aware, however, that I'm not seeking to embroil myself, the CAG or the consultants in a live dispute with city staff. Accordingly, I'm limiting this request to people who have either (i) completed their garage apartments/alley flats or (ii) tried but given up after concluding they faced insurmountable expenses or obstacles.

Complexity and the Land Development Code

Community Impact has a nice write up on the Land Development Code rewrite listening sessions the City hosted in September. It features two contrasting perspectives on the LDC's undeniable  complexity: 

The last time Austin’s code had a comprehensive revision was in 1984. During a public presentation, city staff pointed out that Apple Inc. introduced its first Macintosh personal computer the year the city’s code was last revised. The current code has grown to include more than 800 pages of information.

Because of its age and the amount of changes made, the code has become a challenging document for city staff to interpret, [City planner George] Zapalac said.

“Our existing code has been amended hundreds of times, in piecemeal fashion, but we’ve never taken a comprehensive look at how all those various amendments impact each other and whether they’re helping to achieve the kind of community that we need,” Zapalac said.

Zapalac said the code is overdue for a comprehensive rewrite. Some concerns that arise from a complicated code sometimes lead to confusion on the part of developers or residents looking to renovate or remodel their homes.

“Sometimes a person can prepare their plans, submit them to the city for review, be well along in the review process and then discover that a regulation they hadn’t anticipated will apply. They will have to redesign, or they may not be able to do what they want to do at all,” Zapalac said.

I think it's safe to say that that's the conventional wisdom at One Texas Center: the LDC is too complex and unwieldy. Even a complex land development code has its defenders, though:  

Cory Walton, an Austin resident who lives in the Bouldin Neighborhood, attended one of the public workshops on the LDC rewrite. He said he sees the current complicated code as a positive development because the additional layers of complexity were necessary to address unforeseen problems in the code.

“Those are additional layers of protection that have come over the years because of past oversights or past loopholes or past abuses that had to be patched up,” Walton said.

I was working on a deep, thoughtful piece about the diminishing marginal returns to regulatory complexity, but decided to chuck it. Instead let me simply note that Austin's nice, central neighborhoods managed to develop as nice, central neighborhoods without complicated land-use regulations.  

Take the Bouldin Creek neighborhood. Its nice street grid was set and the lots mostly platted even before Austin adopted its first subdivision ordinance in 1946. The neighborhood, in fact, had begun to develop before Austin adopted its original 1931 zoning ordinance, which is all of 20 pages. Most of the  surviving original homes and commercial buildings on South First Street were built either under the 1931 ordinance or the 1941 revision which, at 50 pages, is still remarkably lean by today's standard.

By contrast, my copy of the current code devotes more than 23 pages just to the McMansion regulations. That's 23 pages spent doing nothing but regulating the setbacks, sizes and building envelopes of single-family homes. And, yes, you can find people who claim the McMansion ordinance doesn't go far enough and is riddled with loopholes.

The complexity of today's code has little to do with making nice places. It's instead a product of the lack of consensus about how the city should develop. In the 1930s and 1940s, people tended to be on the same page when it came to development. The people who initially settled in the Bouldin Creek neighborhood, for example, had mostly modest incomes, and mostly built modest homes. I doubt there was demand for anything but relatively small single-family homes and small commercial buildings south of the river back then.

You don't need a very complicated code when almost everyone wants to build the same thing. You just write a code that allows what most everyone would build anyway, leave a little margin for error, and you're done. The only time the code will actually matter is when it's used to reign in the owner with highly idiosyncratic taste. But these owners are rare. 

By contrast, today we have no widespread agreement on what sort of development ought to be permitted. There are lots of people who want to build things that are not authorized by the LDC, not just the rare, idiosyncratic property owner. Part of the reason is that our zoning code sets entitlements well below market demand, at least in the urban core. Many people want to build much larger structures than homeowners built in the 1930s or 1940s. (That's not a sign of a decline in good taste, or rising greed, or anything of the sort. People just tend to build one kind of structure on a lot that  is worth $500 and a different kind of structure when the same dirt is worth $300,000.) The systematic underzoning is not the only reason, though. The city is a much larger, more diverse and more complicated place than it was in the 1930s and 1940s. It's only natural that there is less consensus on development.

This lack of consensus has consequences. We expect our LDC today to keep people from building stuff they really, really want to build.  A code that is trying to keep a bunch of people from doing what they want to do will get complicated, fast. When you set the allowable development density or floor-to-area ratio or whatever below demand, then owners/developers will naturally build to the limit, which means they will constantly test the limit. I don't mean by breaking the rules, but rather by configuring their property or using their entitlements in creative ways to maximize their building space. This constant testing triggers a legislative response by those who want to maintain the status quo, which triggers more testing, and so on, and  the Code thereby accrues layer after layer of complexity.

Block One

Jude Galligan at Downtown Austin Blog has posted a rendering of Trammell Crow's forthcoming apartment/office tower on the site of the Green Water Treatment Plant:

In case you're wondering, the dramatic step-backs from Cesar Chavez are mandated by the Waterfront Overlay. All buildings in this particular subdistrict must fit within a 70-degree envelope beginning at a point 45 feet above the southern property line, thereby advancing the little-known but very important public interest in ziggurat-themed architecture.

Watson responds

Senator Kirk Watson responded in the comments to my criticism of his bill to incorporate the Congress Avenue Overlay into state law. I don't get many comments from elected officials, much less state senators, so the comment rates its own post.

Thanks for opening this discussion about the bill I've filed with Rep. Howard to preserve the most famous view of one of our most famous and important buildings in Austin. A couple of points I think I need to make:

First of all, this legislation would preserve what the City of Austin has done - it reinforces what the city has passed and implemented, and it acknowledges the variances that the council has already passed. That's the opposite of Austin-bashing bills that seek to undo a city policy or program. This aligns state law with city policy, and it helps ensure that the legislature won't work to actually undermine that policy in the future to help projects that the city doesn't want.

Beyond that, let's face it: the Capitol View Corridor is a technical name for something that the people of Austin place enormous value in. The view of the Capitol, and this view from Congress in particular, is an iconic part of the Capitol City - you see that every time someone stops when crossing Congress (hopefully with the walk sign) to take a picture of the Capitol up the street. It's been a vital part of this city since Edwin Waller first laid out the streets for our downtown in 1839 and designated this part of the city for the Capitol.

I remember the complaints in the late-80s about how new high-rises were blocking the view of the Capitol, and the grim jokes about how developers were going to start building in the middle of the street. How would Austinites react if 21st Century high-rises encroached on their Capitol view even more? No other Texas city has this wonderful downtown resource; it can't be the first thing we sacrifice in the name of making things easier for certain developers and property owners.

Furthermore, keep in mind, this beautiful building is in Austin, but it belongs to all of Texas. Legislators from other places like that they and their constituents can see it. It's much, much better to get rules in place before there's a problem than to deal with repercussions after a problematic project goes up.

One other point that needs to be made: there's no question that there should be opportunities to enhance our 24-hour downtown. But the notion that a lively downtown requires huge new buildings that encroach on the Capitol view and violate longstanding city policy is simply wrong. The Warehouse District, Sixth Street, South Congress and the Second Street Retail District - to name just four - all speak to that.

So it's a false choice to say that we have to choose between creating a vibrant section of downtown or preserving a famous, beloved view of the Capitol. Instead, what Rep. Howard's and my bill declares is that developers have to conform with Austin's figurative view of its downtown and our literal views within downtown. The bill rejects piecemeal development that's done on-the-cheap and variance-by-variance. And it ensures our community's face and its future aren't made subservient to private-sector profits.

I understand there are problematic properties on Congress that are difficult to develop under these long-standing rules and policies. But it's not the responsibility of the people of Austin and Texas to sacrifice something we hold dear and fundamental to our identity simply to solve the problems of the private sector. And don't forget, even if this bill passes, any indisputably good development can still come to the legislature and get exempted from this law.

So this bill doesn't end development on Congress. It simply limits bad development that encroaches on something Austinites hold dear, and it helps us preserve this thing that makes Austin special.

I appreciate the response and will put up something later responding to a few of these points.

 

Senator Watson has introduced a bill to strip Council of discretion to grant variances from the Congress Avenue Overlay

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.

Will Austin's forthcoming bag ban make (some of us) sick?

Maybe. According to this paper (pdf) by Jonathan Klick and Joshua Wright, San Francisco experienced a  spike in ER visits from food-borne illness when it adopted its ban in 2007. From the paper's introduction:

In an effort to reduce litter and protect marine animals, jurisdictions across the globe are considering banning plastic grocery bags. In the US, California leads the way. San Francisco enacted a county-wide ban covering large grocery stores and drug stores in 2007. It extended this ban to all retail establishments in early 2012. Los Angeles followed suit in 2012, as did a number of smaller cities throughout the state. Some municipalities have imposed taxes on the bags rather than implement direct bans.

These bans are designed to induce individuals to use reusable grocery bags, in the hope that a reduction in the use of plastic bags will lead to less litter. Recent studies, however, suggest that reusable grocery bags harbor harmful bacteria, the most important of which is E. coli. If individuals fail to clean their reusable bags, these bacteria may lead to contamination of the food transported in the bags. Such contamination has the potential to lead to health problems and even death.

We examine the pattern of emergency room admissions related to bacterial intestinal infections, especially those related to E. coli around the implementation of the San Francisco County ban in October 2007. We find that ER admissions increase by at least one fourth relative to other California counties. Subsequent bans in other California municipalities resulted in similar increases. An examination of deaths related to intestinal infections shows a comparable increase.

Using standard estimates of the statistical value of life, we show that the health costs associated with the San Francisco ban swamp any budgetary savings from reduced litter. This assessment is unlikely to be reversed even if fairly liberal estimates of the other environmental benefits are included.

This is a small sample, obviously, so I take it as only weak evidence for a causal effect. But one reason the result is at least plausible is that reusable grocery bags can be nasty things:

Williams et al (2011) randomly selected reusable grocery bags from consumers in grocery stores in Arizona and California. They examined the bags, finding coliform bacteria in 51 percent of the bags tested. Coliform bacteria were more prevalent in the California bags, especially those collected in the Los Angeles area. E. coli was found in 8 percent of the bags examined. The study also found that most people did not use separate bags for meats and vegetables. Further, 97 percent of individuals indicated they never washed their reusable grocery bags. Bacteria appeared to grow at a faster rate if the bags were stored in car trunks. This study suggests there may be large risks associated with using reusable grocery bags, though it does imply that fastidiously washing bags can virtually eliminate the risks. However, the survey results suggest that virtually no one washes these bags.

Again, this may be a mere coincidence rather than a real phenomenon.  It will be interesting to see whether Brackenridge and Dell see a spike in food-poisoning cases after our bag ban goes into effect in March. If a real phenomenon, will Austin see more or less illness than San Francisco? On one hand, Austin's ordinance is actually a good bit more stringent than San Francisco's 2007 ordinance, which permitted the distribution of recyclable paper bags and compostable plastic bans, and which did not even apply to all grocery stores in the city. Our Council really, really wants Austinites to use reusable bags. On the other hand, a lot of Austinites shop at suburban grocery stores that aren't subject to the ban.

Frequently discarding used bags and buying "fresh" reusable bags may be a wise precaution, regardless. It's true that will wipe out the alleged environmental benefit of using reusable bags, but that benefit is minimal anyway if you're not a litterer.