Call to Action

[Date]

Honorable City Council Members,

My name is ___________. I am a resident in the ___________ Community and would like to formally request that you overturn the Planning Commission’s recommendation to approve the Sunset Ridge Apartments Site Plan that was provided on July 24, 2024 (Case SPC-2024-0162C.SH), and to require the Applicant’s plan to comply with applicable laws. The recommended approval violates several City ordinances and Texas State statutes and therefore must be overturned.

It is important to note that the affected residents have continually raised these issues for over six months to both the City and the Applicant, but none of the issues raised have been addressed. Given this inaction, the Sunset Ridge Site Plan approval must be overturned as it does not comply with applicable law. Violations associated with the Planning Commission approval include, but are not limited to the following:

I. Violation Of Land Development Code § 25-8, Sub A, Article 13 - Save Our Springs Initiative

The Land Development Code specifies a maximum 25% impervious cover limit based on net site area while the site plan has relied on less restrictive impervious cover limits of 55% and 35% found in applicable restrictive covenants. The City has erroneously made the determination that since the more permissive restrictive covenant allowances predate the SOS requirements, the restrictive covenants should apply. Yet, this determination contravenes established case law, which finds that if the restrictive covenant is less restrictive than the ordinance, as in this case, the ordinance prevails.

II. Violation Of Texas Local Government Code, Chapter 245

The City is affording the Sunset Ridge Project grandfathered development rights under Chapter 245 based upon the restrictive covenants, which were voluntarily entered into in the 1980s as part of the “Oak Hill Area Study”. These grandfathered rights are occurring in practice despite the fact that on paper the City has determined that the project’s vesting date is November 1, 2023. As a reminder, the restrictive covenant at issue here is not a required “permit” under Tex. Loc. Gov’t Code § 245.001(1) ( […]a license, certificate, approval, registration, consent, permit ... or other form of authorization required by law, rule, regulation, order, or ordinance that a person must obtain to perform an action or initiate, continue, or complete a project for which the permit is sought). The restrictive covenants associated with the Oak Hill Area Study were never required by any agency, which includes the City of Austin. From their inception, these restrictive covenants were voluntary, and any subsequent amendments were also voluntarily requested and executed by the property owners. There has never been any City Code requirement for these instruments. To the extent they are not void agreements, these restrictive covenants are agreements to restrict development and could not be read in a way that would nullify the requirements of other applicable environmental codes, such as the SOS Ordinance. As a result, Chapter 245 is inapplicable to vest any development rights prior to the established vesting date of the present site plan. Therefore, the site plan must conform to the City’s environmental code under Chapter 25-8 including being subject to a 25% maximum impervious cover limit based on net site area. Since the approved site plan violates this limitation, the site plan approval must be overturned.

III. Violation Of Land Development Code § 25-2-1025 – Hill Country Corridors –Natural Area

This provision of the LDC specifies that 40% of the site, excluding dedicated right-of-way, must be left in a natural state. Under LDC § 25-2-1025(A) and (D), only natural areas within parking medians and the Roadway Vegetative Buffer can count towards the natural area requirement, along with undisturbed or revegetated natural areas. Despite this fact, City staff has counted the areas represented by biofiltration, sedimentation, detention and retention basins in the Project site plan as fulfilling the 40% natural area requirement. Please note, the reason for this is that City Staff is stating that Ordinance 20100610-059 allows these detention and retention areas to count toward the 40% requirement under LDC § 25-2-1025(A), but this is a misstatement of law. In a plain reading of the Ordinance only “office uses” may count detention facilities, etc. toward meeting the 40% natural state requirement. The proposed Project is for multifamily residential use. No explanation has been offered by City staff as to how this multifamily project qualifies as an “office use.” No citations to codes, statutes or other applicable laws have been provided by City staff to justify their claim, and this is very troubling. Therefore, approval of the site plan where these detention facilities are allowed to factor into the 40% natural state requirement is in violation of Title 25 of the LDC and as such the site plan approval must be overturned.

IV. Violation Of Land Development Code § 25-6-113 – Traffic Impact Analysis

LDC § 25-6-113 requires a traffic impact analysis for any project where the expected number of trips generated by a project exceeds 2,000 vehicle trips per day. In addition, City Ordinance No. 20060727-113 created a conditional overlay for the site, which states, “a site plan or building permit for the Property may not be approved, released, or issued, if the completed development or uses of the Property, considered cumulatively with all existing or previous authorized development and uses, generates traffic that exceeds 2,000 trips per day.” The 444-unit site plan results in over 2,000 trips per day and triggers a required Traffic Impact Analysis. Therefore, approval of the site plan is in violation of LDC § 25-6-113 and City Ordinance City Ordinance No. 20060727-113 and as such the site plan approval must be overturned.

V. Violation Of Land Development Code § 25-8-641 – Heritage Tree Removal

LDC § 25-8-641 prohibits the removal of a Heritage Tree, subject to the variances processes in LDC § 25-8-642 or § 25-8-643. The Project is proposing to remove 13 heritage trees. Four trees have been granted a variance from the City Arborist due to the “dead, diseased, or imminent hazard” determinations. No public record exists to establish variance approvals (which would need to demonstrate that sufficient mitigations have been provided) or public hearings for the removal of the remaining heritage trees. Therefore, approval of the site plan is in violation of this statute and such site plan approval must be overturned.

VI. Violation Of Land Development Code § 25-2 – Zoning

The creation and amendment of the restrictive covenants associated with the site plan has occurred through City zoning cases, as amended multiple times, and most recently through case C14-85-288.166(RCA2). The application of the amended restrictive covenant to the site plan is an application of zoning regulations that have not followed the required procedural process prescribed by LDC 25-2 and Tex. Loc. Gov’t Code. Ch. 211 but have instead been applied through contract zoning. These restrictive covenant amendments have created a unique set of multifamily residential uses for this specific project, including an increased floor-to-area ratio, which would otherwise not be allowed without proceeding through the statutorily required rezoning process. In other words, the City is creating zoning by contract, without ordinance, through ultra vires acts in violation of the Texas Open Meetings Act and the requirements of LDC 25-2. As a result, this site plan approval must be overturned, and the applicant must be required to follow the applicable law before proceeding any further.

VII. Power of Planning Commission; City Charter; LDC § 25-5-147(C)

The Planning Commission is charged by the City Charter of the City of Austin to ensure that a proposed site plan complies with all of Title 25 of the Land Development Code and the City’s Comprehensive Plan before issuing a recommendation. This power and responsibility is a broad one. On page 1 of its Site Plan Review Sheet to the Planning Commission, City staff stated,

"[T]he focus of granting the request should be based upon the site development regulations meeting the criteria of the Hill Country Roadway Ordinance and not the merits of the Council approved Affordability Unlocked Ordinance or Restricted Covenant Amendment. The question is to grant or deny; additional conditions may not be imposed."

This instruction impermissibly curtails the powers afforded to the Planning Commission and is an ultra vires act that you, as our elected officials, should take seriously.

In aggregate, these items represent significant violations of City ordinances and Texas statutes. It is imperative that elected City Officials follow the rule of law and overturn the Planning Commission approval of the Sunset Ridge Site Plan.

Sincerely,

___________