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Height limits protect; incentive bonuses restore

April 29, 2009
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I expect the Austin City Council tomorrow to adopt “new” height limits for the Lady Bird Lake Waterfront Overlay.   The “new” limits are actually those adopted in a 1986 ordinance but eliminated in a 1999 rewrite of the code.

Austin Skyline from Town Lake

Austin Skyline from Town Lake

The height limits were the subject of ferocious (and, in my opinion, often misleading) debate during the battle over CWS’s proposed development on Riverside Drive. Prodded by Save Town Lake, Council appointed a Waterfront Overlay Task Force to revisit the height limits after the battle had crested.

The Waterfront Overlay Task Force has recommended that Council adopt (or restore) the 1986 limits.

I quibble with some of the height limits. They are too restrictive for some subdistricts given the development over the last quarter century or so.

But my main concern is the one raised by the Task Force’s minority report   (pdf): the Task Force has recommended that Council restore the height limits without addressing the incentive bonuses provided by the 1986 ordinance.  

The 1986 ordinance included a well-defined set of bonuses.  Developers could earn additional height or FAR by providing public benefits, such as public access to the hike-and-bike trail, dedicated easements or pedestrian-oriented uses.  These bonuses could not be used to exceed the WO height restrictions.  But they could be used to exceed — as a matter of right — the rather arbitrary height limits of base zoning districts (e.g., 35 feet for Neighborhood Office Districts, 40 feet for Light Office Districts and MF-3, etc.).

The bonuses were a quid pro quo.  The city imposed a hard cap on height in return for flexibility on base district heights and FAR, which in turn was conditioned on  property owners providing a public benefit.  The incentive bonuses were part and parcel of the waterfront overlay scheme.  By omitting this flexibility, the Waterfront Overlay Task Force has actually proposed a set of regulations more restrictive than the 1986 ordinance.

While height limits are critical to protecting Lady Bird Lake, flexible incentive bonuses are crucial for restoring Lady Bird Lake.  Large swaths of the lake front are cluttered by dilapidated developments or, worse, developments obstructing  public access and use of the lake.  The CWS property was a case in point.  While it is reasonable (to a point) to limit the maximum height of development around the lake, it is equally important, in my opinion, to encourage property owners to fix some of bad developments.  That requires incentives.  After all, if a property owner must comply with stringent site regulations no matter what, why let the public traipse through its property? 

Although the Task Force majority report (pdf) endorses some type of bonus system, it criticized the 1986 bonus provisions because they “did not have a means to allocate fairly additional height or
increased floor area ratios in response to community benefits provided by proposed
new development.”  (p.2).   (Somewhat confusingly, though, it recommends that City Council  “reinstated [sic] the bonus provisions
previously outlined in the 1986 ordinance.”)

The proposed ordinance does not address incentive bonuses at all.  City Council thus is being asked to adopt hard height limits now and leave the incentive bonuses for future debate.  And that’s the real problem.  Any proposal will draw opposition from some quarters of town.  Furious opposition.  Opposition from people who care less about restoring access to the lake than limiting the size or density of new developments — even developments that would comply with the WO height limits.

If we want to incentivize property owners to fix bad developments, restore access to the lake, or dedicate green space for public use, we need to work out the incentives now, before the height limits are adopted.  Otherwise, expect some of those now paying lip service to bonuses to quickly lose their enthusiam.  

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