PUD’s PUD’s EVERYWHERE & MORE TO COME

By August Harris, Immediate Past President, WANG

What is a PUD and why does it matter to you? First, let me explain a little about PUD’s. A Planned Unit Development or PUD is a form of zoning intended as a planning tool for larger tracts of land. With traditional zoning, land uses tend to be siloed. For instance, the vast majority of West Austinites live in Single Family-3 zoning which specifies a minimum lot size of 5,750 square feet for a single home and 7,000 square feet for a duplex as well as things like setback requirements, impervious cover and height limits. Such zoning also often includes compatibility provisions that help ensure that adjacent development with a different zoning category such as Multi-Family 4 or Light Office/Retail Office are compatible in terms of scale and massing to the surrounding houses. Within PUD’s, zoning becomes much more integrated with a variety of land uses. As the City of Austin explains:

A Planned Unit Development (PUD) is intended for large or complex developments under unified control planned as a single continuous project, to allow single or multi-use projects within its boundaries and provide greater design flexibility for development proposed within the PUD. Use of a PUD district should result in development superior to that which would occur using conventional zoning regulations. PUD zoning is appropriate if the PUD enhances preservation of the natural environment; encourages high quality and innovative design and ensures adequate public facilities and services for development within the PUD.

It is a “means of land regulation which promotes large scale, unified land development by means of mid-range, realistic programs in chase of physically curable, social and economic deficiencies in land and cityscapes. Where appropriate, this development control promotes:

• A mixture of both land uses and dwelling types with at least one of the land uses being regional in nature
• The clustering of residential land uses providing public and common open space
• Increased administrative discretion to a local professional planning staff while setting aside present land use regulations and rigid plat approval processes.

For the developer it can potentially “increase profits due to land efficiency, multiple land uses, and increased residential densities.” There are distinct benefits for using PUD’s for large tracts of land. Among other benefits to the developer, PUD zoning allows flexibility under established maximums for height, mass, impervious cover etc. The developer can also move elements of the development around after the PUD has been approved, which can be problematic for those adjacent without adequate protections in place. The intended development, however, has to achieve superiority over what could be achieved with traditional zoning. The City establishes three tiers of superiority, Type I being the lowest and Type III being the highest and best standards. The differences and requirements are too lengthy for our purposes but WANG will work to inform you on the critical differences as we move forward.

You need to understand a PUD and its potential impacts, both positive and negative. No doubt, it is a development tool that will be used on State and University of Texas owned land such as the Austin State Assisted Living Center (what we often refer to as the Austin State School) and the Brackenridge Tract including Lions Municipal Golf Course in the near future. The development community is carefully watching both the process and the outcome of a number of proposed PUD’s including the Grove at 45^th and Bull Creek and the Austin Oaks PUD at MoPac and Spicewood Spring Road as they look to the profit potential for our two substantial tracts of land in West Austin. Thus, let me underscore to you that knowing what a PUD is as well as the benefits and drawbacks of this development tool is perhaps one of the most important things to learn about for you and your neighbors as we look to the future of West Austin. You will need to be involved and engaged when the time comes in order to ensure the best possible outcome.

Approval of PUD’s

 

Before going to the City Council, all applications for PUD zoning must go before the appropriate land commission, either the Planning Commission or the Zoning and Platting Commission. In our neighborhood, because we are under a neighborhood plan, the Central West Austin Combined Neighborhood Plan that we all worked so hard on a number of years ago, the application will go to the Planning Commission.

 

Up until the City Council meeting on February 7^th, 2016, if the Planning Commission did not recommend a PUD application on previously zoned land, it would take a super majority vote of the City Council to override that disapproval. Again, this was seen as a way to encourage developers to work with their neighbors to bring forward a superior development that would benefit everyone while mitigating potentially detrimental impacts.

 

Now hold on because this is where it gets interesting – and tragic. This hurdle for ultimate City Council approval was only applicable to proposed PUDs on zoned land, not for PUD applications on unzoned land, so this City Council decided to reexamine the ordinance. What occurred on February 7^th, and at the behest of some in the development community, was that the City Council, whose interests were led by our representative CM Gallo and our Mayor Adler, decided that rather than make the super majority rule applicable for both zoned and unzoned land, they made it far easier for a PUD on unzoned land to be approved. As a result of their actions, to get approval for a PUD on unzoned land where the Planning Commission denies a request for PUD zoning, only a simple majority vote by City Council is now all that is required. The only thing that would force a super majority vote at Council, which again would encourage the developer to work with the surrounding community to achieve superiority, is a super majority in opposition at the Planning Commission. Given the makeup of the Planning Commission, the Council’s action all but guarantees that developers applying for PUD’s on unzoned land have far less incentive to work with surrounding stakeholders like you.

 

To get a super majority of planning commissioners to deny a PUD application creates a high hurdle, but not on the developer of the project. That burden shifts to those like us, citizens and volunteers, who are advocating for a superior development. By virtually eliminating the requirement for a super majority vote at Council, it has become a game changer for developers by minimizing the incentives to gain approval. It is much easier to lobby for 6 votes rather than being required to get 9 votes. Again, this matters to us because the State Assisted Living Center and the Brackenridge Tract, including the Municipal Golf course, are unzoned, or will be when sold to a private developer.

Valid Petition & PUD’s

It also is important to understand the difference in treatment by the City of Austin of zoned and unzoned land in regard to valid petition rights. Valid petition rights are outlined and guaranteed by State statute. There are two criteria for triggering valid petition rights. For our purposes, if zoned land is changed to a PUD, neighbors within 200 feet of the proposed PUD have valid petition rights guaranteed by State statute. This means that the developer’s plan must be approved by a super majority of the City Council. We have already outlined the benefits of requiring a super majority. However, the City currently interprets its code as excluding unzoned land from this requirement. WANG and others believe that the City has erred in its determination and that valid petition rights should apply to both zoned and unzoned land. It appears, based on the work that has been done on this matter, that it will require a court to rectify the situation and ensure the equal treatment of our citizens.

Valid petition rights are critical to you. There are some questions and indeed exceptions but the Brackenridge Tract and Austin State Assisted Living Center are unzoned. To reiterate, under current City code, those of you who are adjacent neighbors to these two tracts will be deprived of your right of valid petition and thus are treated inequitably by the City. WANG believes that the current code protections for zoned property should also apply to unzoned land as well. We believe that equal treatment will encourage meaningful and substantive good faith negotiations by all parties and will ultimately result in a superior PUD that will complement the neighborhood and benefit the community, and help the City achieve the goals and priorities of Imagine Austin rather than providing an easier path to approval for substandard PUDs.

Stay tuned for more.