20240828-001: Findings of Fact and Conditions For Support Staff Presentation — original pdf

Backup

Recommended with Conditions Finding of Facts and Conditional Approvals Presented to Environmental Commission on 8/28/2024 Liz Johnston, Interim Environmental Officer WPD AJ Urteaga Assistant City Attorney, Law Dept EV Commission Recommendations Application types require distinct considerations • Land Use Commission Variances = Findings of Fact • Planned Unit Developments (PUDs) = Tier 1 & Tier 2 Superiority Items • MUDs = Extraordinary Community Benefits • Restrictive Covenant Amendments = Zoning laws apply • Save Our Springs site specific amendments = No code defined considerations. Water quality impacts are most important. Land Use Commission Variances • Land Use Commission (LUC) Variances occur when either Zoning and Platting or Planning Commission must approve the variance after receiving a recommendation from Environmental Commission • Variances are necessary when a proposed project cannot comply with the Land Development Code (LDC) • Environmental variances may be requested from any code requirement in 25-8 except 25-8 Article 13 Save Our Springs • Other code sections may require different variance processes. • Ex: Zoning variances are heard by the Board of Adjustment unless otherwise described • The LDC allows certain variances to be approved administratively (staff approved) Variance Approval Process • Both staff and applicant create separate versions of the Findings of Fact – submitted as backup with each variance • EVC may accept or reject staff’s recommendations • Recommended disapprovals should have a basis in not meeting one of the findings • PC & ZAP are the Land Use Commissions (LUCs) that hear environmental variances • Cases located in a neighborhood planning area are heard by Planning Commission. All others are heard by the Zoning and Platting Commission. • LUC issues final decision. • EVC variances have no appeals. Land Use Commission Variances FINDINGS OF FACT Land Development Code § 25-8-41 § 25-8-41 LAND USE COMMISSION VARIANCES. (A) It is the applicant's burden to establish that the findings described in this Section have been met. Except as provided in Subsections (B) and (C), the Land Use Commission may grant a variance from a requirement of this subchapter after determining that: (1) the requirement will deprive the applicant of a privilege available to owners of other similarly situated property with approximately contemporaneous development subject to similar code requirements; (2) the variance: (a) is not necessitated by the scale, layout, construction method, or other design decision made by the applicant, unless the design decision provides greater overall environmental protection than is achievable without the variance; (b) is the minimum deviation from the code requirement necessary to allow a reasonable use of the property; and (c) does not create a significant probability of harmful environmental consequences; and (3) development with the variance will result in water quality that is at least equal to the water quality achievable without the variance. Land Use Commission Variances continued FINDINGS OF FACT Land Development Code § 25-8-41 § 25-8-41 LAND USE COMMISSION VARIANCES. (B) The Land Use Commission may grant a variance from a requirement of Section 25-8-422 (Water Quality Transition Zone), Section 25-8-452 (Water Quality Transition Zone), Section 25-8-482 (Water Quality Transition Zone), Section 25-8-652 (Restrictions on Development Impacting Lake Austin, Lady Bird Lake, and Lake Walter E. Long), or Article 7, Division 1 (Critical Water Quality Zone Restrictions), after determining that: (1) the criteria for granting a variance in Subsection (A) are met; (2) the requirement for which a variance is requested prevents a reasonable, economic use of the entire property; and (3) the variance is the minimum deviation from the code requirement necessary to allow a reasonable, economic use of the entire property. (C) The Land Use Commission may not grant a variance from a requirement of Article 13 (Save Our Springs Initiative). (D) The Land Use Commission shall prepare written findings of fact to support the grant or denial of a variance request under this section. Land Use Commission Variances FINDINGS OF FACT Land Development Code § 25-8-41 (1) the requirement will deprive the applicant of a privilege available to owners of other similarly situated property with approximately contemporaneous development subject to similar code requirements; • Neighborhood context important • Consider precedent if variance is approved • Should be mindful of prior development that may have developed prior to existing regulations or that was vested out of existing regulations Land Use Commission Variances FINDINGS OF FACT Land Development Code § 25-8-41 (2) the variance: (a) is not necessitated by the scale, layout, construction method, or other design decision made by the applicant, unless the design decision provides greater overall environmental protection than is achievable without the variance; • Conditional approvals can help achieve greater overall environmental protection • Conditions should usually be related to water quality to mitigate the impacts of the variance and provide a better overall project • Most projects are design decisions. Notable exceptions: Public infrastructure projects often limited by ROW • • Creek crossings may require variances to access developable land What does “Greater Overall Environmental Protection” mean? • Intent of code is important • What additional environmental (especially water quality) benefits can be achieved if the variance is approved not otherwise required? • 25-8 Subchapter A Water Quality: • Basis for COA’s regulations lie in Texas Water Code & Local Government Code • Water quality protections are important component of the CoA’s Municipal Separate Storm Sewer System (MS4) permit Elements that affect Water Quality: • Reduced impervious cover • Enhanced stormwater management options (overland flow, infiltration, slow velocities, sheet flow) Limit site disturbance • • Buffers along waterways and Critical Environmental Features (wetlands, springs, recharge features, etc) Improve tree canopy Limit grading: keep soil onsite & stormwater flowing in natural drainage patterns • • • Erosion prevention: • Temporary sedimentation control • Permanent sedimentation control (native plants help • Riparian restoration (Ex: woody vegetation, invasive due to long roots!) species removal) • Creek restoration (Ex: In-channel solutions, grade controls) • Education/Outreach • Slope protections Examples of conditions for approval Example: Cut/Fill greater than allowable - Impacts of cut/fill include: - Changing natural stormwater conveyance = downstream - Greater site disturbance = sediment discharges more likely - Soil is hauled off or on site = more trucks on the road/greater erosion during construction disturbance offsite - Natural & traditional character impacts - Mitigation options: - Improve stormwater outfalls from pond, recreate overland flow drainage elsewhere on site, provide enhanced velocity controls with native plantings - Enhanced temporary erosion controls (more sediment basins, more silt fence, Jersey barriers, etc) - Ask applicant to balance site to extent possible - Native planting, restoration, hillside terracing, natural materials for walls Land Use Commission Variances FINDINGS OF FACT Land Development Code § 25-8-41 (2) the variance: (b) is the minimum deviation from the code requirement necessary to allow a reasonable use of the property; • Minimum deviation from code – • Would the variance be required no matter how the property is developed? Example – creek crossings • Is development maximized on site or are areas left undisturbed • What is reasonable use? Is type of development appropriate for the land? Land Use Commission Variances FINDINGS OF FACT Land Development Code § 25-8-41 (2) the variance: (c) does not create a significant probability of harmful environmental consequences; Consider harmful consequences - especially related to Water Quality and natural resource protection • What potential impacts would there be to creeks, caves, springs, wetlands? • What impacts to tree canopy coverage? • What precedent is being set that would have compounding consequences over time? (Ex: increases in impervious cover) • Sediment discharge off site Land Use Commission Variances FINDINGS OF FACT Land Development Code § 25-8-41 (2) the variance: (c) does not create a significant probability of harmful environmental consequences; Consider harmful consequences - especially related to Water Quality and natural resource protection • What potential impacts would there be to creeks, caves, springs, wetlands? • What impacts to tree canopy coverage? • What precedent is being set that would have compounding consequences over time? (Ex: increases in impervious cover) • Sediment discharge off site Land Use Commission Variances continued FINDINGS OF FACT Land Development Code § 25-8-41 § 25-8-41 LAND USE COMMISSION VARIANCES. (B) The Land Use Commission may grant a variance from a requirement of Section 25-8-422 (Water Quality Transition Zone), Section 25-8-452 (Water Quality Transition Zone), Section 25-8-482 (Water Quality Transition Zone), Section 25-8-652 (Restrictions on Development Impacting Lake Austin, Lady Bird Lake, and Lake Walter E. Long), or Article 7, Division 1 (Critical Water Quality Zone Restrictions), after determining that: (1) the criteria for granting a variance in Subsection (A) are met; (2) the requirement for which a variance is requested prevents a reasonable, economic use of the entire property; and (3) the variance is the minimum deviation from the code requirement necessary to allow a reasonable, economic use of the entire property. (C) The Land Use Commission may not grant a variance from a requirement of Article 13 (Save Our Springs Initiative). (D) The Land Use Commission shall prepare written findings of fact to support the grant or denial of a variance request under this section. Land Use Commission Variances continued FINDINGS OF FACT Land Development Code § 25-8-41 § 25-8-41 LAND USE COMMISSION VARIANCES. (B) (2) the requirement for which a variance is requested prevents a reasonable, economic use of the entire property; and § 25-8-41 LAND USE COMMISSION VARIANCES. (B) (3) the variance is the minimum deviation from the code requirement necessary to allow a reasonable, economic use of the entire property. § 25-8-41 LAND USE COMMISSION VARIANCES. (C) The Land Use Commission may not grant a variance from a requirement of Article 13 (Save Our Springs Initiative). (D) The Land Use Commission shall prepare written findings of fact to support the grant or denial of a variance request under this section. Planned Unit Developments 25-2 Subchapter B Article 2 Division 5 § 1.1. - GENERAL INTENT. This division provides the procedures and minimum requirements for a planned unit development (PUD) zoning district to implement the goals of preserving the natural environment, encouraging high quality development and innovative design, and ensuring adequate public facilities and services. The Council intends PUD district zoning to produce development that achieves these goals to a greater degree than and that is therefore superior to development under conventional zoning and subdivision regulations. - Land Use Plan - Tier 1 requirements (All PUDs must meet these) - Tier 2 requirements (optional) - Code amendments/waivers - Regulating Ordinance Tier 1 Requirements All PUDs must: A. meet the objectives of the City Code; B. provide for development standards that achieve equal or greater consistency with the goals in Section 1.1 (General Intent) than development under the regulations in the Land Development Code; C. provide a total amount of open space that equals or exceeds 10 percent of the residential tracts, 15 percent of the industrial tracts, and 20 percent of the nonresidential tracts within the PUD, except that: a detention or filtration area is excluded from the calculation unless it is designed 1. and maintained as an amenity; and the required percentage of open space may be reduced for urban property with 2. characteristics that make open space infeasible if other community benefits are provided; D. provide a two-star Austin Energy Green Building Rating; E. be consistent with applicable neighborhood plans, neighborhood conservation combining district regulations, historic area and landmark regulations, and compatible with adjacent property and land uses; F. provide for environmental preservation and protection relating to air quality, water quality, trees, buffer zones and greenbelt areas, critical environmental features, soils, waterways, topography, and the natural and traditional character of the land; G. provide for public facilities and services that are adequate to support the proposed development including school, fire protection, emergency service, and police facilities; H. exceed the minimum landscaping requirements of the City Code; I. provide for appropriate transportation and mass transit connections to areas adjacent to the PUD district and mitigation of adverse cumulative transportation impacts with sidewalks, trails, and roadways; J. prohibit gated roadways; K. protect, enhance and preserve areas that include structures or sites that are of architectural, historical, archaeological, or cultural significance; and L. include at least 10 acres of land, unless the property is characterized by special circumstances, including unique topographic constraints. Tier 2 Requirements Suggested Tier 2 Requirements are related to: • Open Space • Environment and Drainage (21 items) • Austin Energy Green Building • Art • Great Streets • Community Amenities • Transportation • Building Design • Parking Structure Frontage • Affordable Housing • Historical Preservation • Accessibility • Local Small Business Other superiority elements can be proposed PUD Conditions - Conditions depend upon number and type of code modifications. - The greater number of requested code modifications, the higher the bar to reach environmental superiority. - Conditions should: 1. Mitigate negative effects of code modifications 2. Bring project to superiority 3. Can be more substantial than variance conditions 4. Some conditions should be site specific – others can be more broad 5. Should be related to an existing regulation EC Rec- Brodie Oaks PUD EC Rec- Brodie Oaks PUD Brodie Oaks PUD Ordinance PART 9. Enviornmental. (D) Lighting. Landowner will meet the Austin Energy Green Building Star Rating System Light Pollution Reduction Criteria ST7 as outlined in the 2022 Commercial Rating System ( or latest applicable version) for all buildings and site lighting. (E) Glass. Landowner will meet the Bird Collision Deterrence measure from the Austin Energy Green Building Star Rating System Bird Collision Deterrence Criteria STEL5 as outlined in the 2022 Commercial Rating System ( or latest applicable version) for all buildings. PART 11. Transportation. (E) Brodie will commit to meeting or exceeding the Austin Energy Green Building Electrical Vehicle Charging and Additional Electric Vehicle Charging measures for all buildings as updated. The project has committed to a minimum of 50% Electrical Vehicle Capable Spaces, as described by the Austin Energy Green Building 2022 Commercial Rating System Guidebook, which can be achieved by installing the supporting infrastructure necessary to facilitate future installation of electrical wire and EVSE. Brodie Oaks PUD Ordinance PART 9. Enviornmental. (C)(7) Landowner shall incorporate pollinator gardens and plants on the Property to support Monarch butterfly and other pollinators. (F) Trash. Landowner shall collect and remove trash from the property so that it does not impact Barton Creek. PART 10. Open Space, Trail Access, and Parkland Dedication. (J) (2) The natural vegetative buffer area may include green infrastructure, including SOS reirrigation, rain gardens, or other functional green infrastructure. (J) (3) Landowner shall provide revegetation with native plantings to provide valuable habitat and ecosystem services supporting the transition from urban transit supportive development to the Barton Creek Greenbelt. Public Restrictive Covenant Amendments - Contractual agreements between City and Landowner/Developer that placed restrictions on how land can be developed or used - Used more frequently in the past - not preferred avenue to restrict development today - When used as a zoning tool, restrictions must be related to elements that can be regulated through zoning - EVC has seen requested Amendments to existing RCs but not likely to see new ones - New conditions are tricky – easier to remove conditions than add them § 25-2-244 - REZONING TO REPLACE A PUBLIC RESTRICTIVE COVENANT WITH A CONDITIONAL OVERLAY. (A) An applicant may file a rezoning application to request that restrictions identical to those contained in a public restrictive covenant be included in a rezoning ordinance as a conditional overlay. (B) A vote by council to amend the zoning designation of a property as requested in an application filed under Subsection (A) constitutes the consent of the council to terminate the public restrictive covenant on the property. (C) The director of the Neighborhood Planning and Zoning Department may not collect an application fee for an application filed under Subsection (A). Public Restrictive Covenant Conditions Appropriate Conditions: The covenants contained in paragraph XX of the Original Restrictive Covenant is amended to add the following conditions to the Restricted Property: • Reduce impervious cover from 55% to 50% • Compliance with the Environmental Criteria Manual Section 1.6.9. (Save Our Springs Initiative) is required. • Except for impervious cover, the development will comply with current code as outlined in Chapter 25-8 (Environment) of the City of Austin Land Development Code. • Cut and fill is limited to a maximum of 8 feet for site work and grading, excluding building footprints, ponds and related wet well basins and underdrain systems. • Water quality control facilities and stormwater detention control facilities, and each appurtenances, and underground utility service lines and maintenance shall be allowed in the Water Quality Transition Zone. Public Restrictive Covenant Conditions Conditions NOT regulated through City's Zoning authority*: • Increase EV charging stations from 4 to 8 • Development will comply with Austin Energy Green Building ST7 Light Pollution Reduction • Development will comply with Austin Energy Green Building STEL5 Bird Collision P criteria Deterrence • Development will use Affordability Unlocked requirements. • Request the applicant provide parkland on-site and/ or sidewalks connecting to parkland within ¼ mile walking distance * Exception- 25-2, Subchapter B, Division 5 (Planned Unit Developments) Municipal Utility Districts MUDs are districts that function as limited, independent governments. Purpose is to provide an alternative finance mechanism for infrastructure such as water, wastewater, drainage, and roadway facilities Managed by a Board elected by property owners May issue bonds to reimburse a developer Can utilitize property tax revenue and user fees to repay debt Municipal Utility Districts - Can be created by - Adoption of a district creation bill by the Texas Legislature, or - Approval by Texas Commission on Environmental Quality (TCEQ) - TCEQ process requires consent by City - Requires multiple Boards/Commissions prior to Council approval - Water & Wastewater Commission, - Urban Transportation Commission - Environmental Commission - Parks and Recreation Board - Planning Commission Municipal Utility Districts City of Austin MUD Policy set forth in Council Resolution 20110217-030 20110217-030 Must benefit City more than standard processes Promote superior development aligned with Comprehensive Plan (Imagine Austin) All developments must comply with PUD Green Building requirements Development should provide “Extraordinary Public Benefits” Should be in the preferred growth area Accompanied by a consent agreement Meets or exceeds intent of development standards Financially self- sustaining Use CoA design criteria for water, wastewater, drainage, public infrastructure Water, wastewater, and reclaimed water provider is the CoA Developer should contribute a portion of infrastructure without reimbursement by the MUD or the City Will not impair the City’s future annexation of the MUD or adjacent property Must be located in the City’s Extra Territorial Jurisdiction (ETJ) Municipal Utility Districts Appropriate MUD conditions: - Consent agreement allows for alternative regulations - Avenue to achieved enhanced environmental protections than current code - Similar to PUDs = “Extraordinary Public Benefit” Site Specific Amendments to the Save Our Springs Initiative Save Our Springs Initiative LDC 25-8 Subchapter A Article 13 - Barton Springs Zone - Non-degradation water quality treatment standard (10 pollutants) - Impervious cover limited depending on recharge zone status (between 15%-25%) net site area - More restrictive Critical Water Quality Zone/Water Quality Transition Zone setbacks - Limits on sod, requirement for IPM, etc Site Specific Amendments to the Save Our Springs Initiative No exemptions, special exceptions, waivers, or variances Only mechanism for relief from regulations is Site Specific Amendment Requires Super Majority approval by City Council Must follow same process as other code amendments Must be initiated by Council or Planning Commission Site Specific Amendments to the Save Our Springs Code Initiative Conditional approvals should be very tied to mitigating negative effects of development on receiving water body (creeks, aquifer, Barton Springs) - Focus on Water Quality - Natural Area preservation - Careful with endangered species (we have obligation to ensure no harm occurs but do not have jurisdiction over endangered species act) - Consider precedent - Consider equity § 25-8-518 - LIMITED ADJUSTMENT TO RESOLVE POSSIBLE CONFLICTS WITH OTHER LAWS. (A) This article is not intended to conflict with the United States Constitution or the Texas Constitution or to be inconsistent with federal or state statutes that may preempt a municipal ordinance or the Austin City Charter. (B) The terms of this article shall be applied consistently and uniformly. If a three-quarters majority of the city council concludes, or a court of competent jurisdiction renders a final judgment concluding that this article, as applied to a specific development project or proposal violates a law described in Subsection (A) of this section, the city council may, after a public hearing, adjust the application of this article to that project to the minimum extent required to comply with the conflicting law. Any adjustment shall be structured to provide the maximum protection of water quality. Barton Bathhouse SOS Amend Ordinance PART 4. CONDITIONS. Construction of the Barton Springs Bathhouse Rehabilitation Project (the “project”) authorized by this ordinance must adhere to the following conditions: (A) The project will decrease total impervious cover on the site by a minimum of 302 sq. ft. (B) The project will improve water quality treatment by constructing a rain garden and vegetative filter strips to treat run off from 0.4 acres of previously untreated parking lot area. (C) After renovation is complete, the project will repair impacted soils and revegetate and restore the site to conditions consistent with uses prior to construction. (D) The project will use native plant species for all proposed plantings exterior to the buildings associated with the project