Recommendation 20220405-D1: Regarding C14-2018-0124 - River Place — original pdf

Recommendation

ZONING AND PLATTING COMMISSION RECOMMENDATION 20220405-D-1 Date: April 5, 2022 Subject: Corrected RCA for C14-2018-0124 - River Place Motioned By: Commissioner Greenberg Seconded By: Commissioner Denkler Recommendation WHEREAS on October 31, 2019 the City Council approved Zoning Ordinance 20191031-044 rezoning the property located at Milky Way Drive from DR to SF-6-CO; and WHEREAS the zoning ordinance limited development to 30 residential units unless there is 1) an additional emergency access point to an external street and 2) traffic is limited to 1,200 trips per day on Milky Way Drive as measured by the greater of the tube count taken at the time of site plan or the ITE Trip Generation Manual; and WHEREAS on October 31, 2019 the property owner signed a public restrictive covenant specifying that development on the Property is subject to the recommendations contained in the Neighborhood Traffic Analysis (NTA) memorandum dated March 13, 2019; and, WHEREAS the restrictive covenant requires a majority vote of the City Council to modify, amend, or terminate the agreement; and WHEREAS on August 11, 2020 a restrictive covenant correction affidavit was signed without City Council approval, substituting the originally-referenced NTA memorandum, dated March 13, 2019, to a different NTA memorandum, dated July 22, 2019, effectively increasing the maximum unit count on the development from 45 to 134; and WHEREAS the tube counts used to measure traffic on Milky Way Drive were collected in March of 2020, at least two years prior to site plan approval, and 8 months prior to the site plan application submission; and WHEREAS in accordance with the restrictive covenant signed on June 9, 2000, the emergency access granted by Austin Christian Fellowship lacks prior written consent from the River Place HOA required to allow driveway access to River Place Blvd. NOW, THEREFORE, BE IT RESOLVED that the Zoning and Platting Commission encourages the Austin City Council 1) 2) 3) to pause all clearing and development activity on the property, and to publicly vote to accept or reject the changes to the restrictive covenant made by the staff, and to instruct staff to deny any site plan in excess of 30 residential units until the developer proves compliance with all of the conditions of zoning. For: Chair Barrera-Ramirez, Vice-Chair Kiolbassa, Commissioners Boone, Denkler, Greenberg, King, Stern and Thompson. Vote : 8-0 Against: Commissioner Smith Abstain: None Absent: Commissioner Woody Off the dais: Commissioner Acosta Attest: Andrew D. Rivera Liaison to Zoning and Platting Commission L A W D E P A R T M E N T M E M O R A N D U M TO: ZONING AND PLATTING COMMISSION FROM: PATRICIA LINK, DIVISION CHIEF, LAND USE AND REAL ESTATE DATE: MARCH 28, 2022 SUBJECT: C14-2018-0124 –RIVER PLACE (MILKY WAY) ZONING & RESTRICTIVE COVENANT This memorandum concerns the neighborhood traffic analysis (NTA) referenced in a public restrictive covenant (RC) associated with Zoning Case C14-2018-0124 for property located on Milky Way Drive (Milky Way). In 2020, City staff and the property owner recorded an affidavit to correct the date of the NTA referenced in the RC. As explained below, this action did not amend or terminate the RC and Council approval was not required. SUMMARY OF THE ZONING CASE HISTORY AND RESTRICTIVE COVENANT ACTIONS In 2018, the property owner (applicant) applied to rezone the property from development reserve (DR) to single family residence large lot-conditional overlay (SF-1-CO). City staff conducted an NTA based on the applicant’s request (Original NTA). The Commission forwarded the request to Council without a recommendation. Before Council considered the case, the applicant amended the rezoning request from SF-1-CO to townhouse and condominium residence-conditional overlay (SF-6-CO). The Commission considered the amended request and forwarded it to Council without a recommendation. After the Commission considered the amended request, City staff revised the Original NTA based on the amended rezoning application (Revised NTA) and included the Revised NTA in Council’s backup materials. Because SF-6-CO was the request presented to Council, the Revised NTA is the controlling NTA. At third reading, Council rezoned the property to SF-6-CO. The applicant signed a RC related to the NTA.1 This RC was recorded in the real property records. See Exhibit A. Subsequently, the applicant notified City staff that the RC did not reference the correct NTA (i.e. Revised NTA). City staff confirmed that the RC included an error because it referenced the Original NTA, not the controlling NTA (i.e. Revised NTA). A correction document does not amend or terminate an existing recorded document but, instead, preserves the validity of the recorded document while still ensuring accurate official records. State law establishes the requirements for correction documents. To correct the date of the NTA, the City and the applicant signed and recorded a correction affidavit. See Exhibit B. The correction affidavit met the requirements in state law and, as a result, does not amend or terminate the RC. As a result, Council approval is not required. 1 The restrictive covenant associated with this zoning case also addressed wildfire concerns. Restrictive Covenant for Zoning Case No. C14-2018-0124 Memorandum to Zoning and Platting Commission March 28, 2022 Page 2 of 4 ZONING CASE HISTORY Initial Application The applicant’s initial application requested the City rezone Milky Way to SF-1-CO. The applicant’s proposed conditional overlay would limit the number of residential units to 45 dwelling units and the development intensity for the entire site to less than 2,000 vehicle trips per day. Staff supported the applicant’s request, including the proposed conditional overlay. An NTA was required and would be documented through a RC. The staff report included a NTA that was dated March 13, 2019 (Original NTA). See pg. 17. This NTA described the zoning request as “single family residence conditional overlay” (SF-1-CO) to allow for the construction of 45 single-family residences. Zoning and Platting Commission – Initial Application On April 2, 2019, the Commission considered a motion to approve staff’s recommendation with a new condition related to a secondary Fire/EMS emergency access. (Motion by S. Lavani, seconded by N. Barrera-Ramirez.) Commissioner King subsequently made an amendment to limit the size of each lot to a minimum of 30,000 square feet. This amendment was seconded by Commissioner Kiolbassa but failed. The primary motion failed on a 4-5 vote. The case was forwarded to Council without a recommendation. Zoning and Platting Commission – Amended Application On or about May 8, 2019, the applicant amended the rezoning request to SF-6-CO and proposed a conditional overlay that would limit development on the property to 1,362 vehicular trips per day. Because the amended request was a less restrictive/more intense zoning district, the case returned to the Commission. On July 16, 2019, the Commission considered the applicant’s amended request. City staff did not recommend the applicant’s amended request. Instead, City staff continued to recommend SF-1- CO. See staff report for July 16, 2019 Commission Meeting. The Commission considered a motion to approve the applicant’s request to rezone to SF-6-CO. (Motion by H. Smith and seconded by B. Evans). Commissioner Denkler made a substitute motion, which was seconded by Commissioner King, to approve the neighborhood’s request of SF-1-CO zoning with a minimum of 30,000 square foot lots and a maximum of 25 residential dwelling units. The substitute and primary motions failed. The case was forwarded to Council without a recommendation. First Reading at Council On August 8, 2019, Council approved SF-6-CO zoning on 1st reading only. See Minutes, pg. 39, Item No. 115: Motion made by CM Flannigan and seconded by CM Casar. Vote: 9-2, Mayor Pro Tem (MPT) Alter and CM Pool – no. The backup materials for Item No. 115 included the staff Restrictive Covenant for Zoning Case No. C14-2018-0124 Memorandum to Zoning and Platting Commission March 28, 2022 Page 3 of 4 report and the Revised NTA. (Note: The Revised NTA is an interlineated version of the NTA dated March 13, 2019. These revisions were made on July 22, 2019. See pg. 19 of the staff report.) The Revised NTA described the zoning request as SF-6-CO to allow for the construction of up to 134 single-family residences. The Revised NTA concluded and recommended that the 134 single family residential units, in combination with existing traffic on Milky Way Drive, do not exceed the thresholds set forth in LDC Section 25-6-116. Moreover, the Revised NTA recommended that the intensity and uses for this rezoning be limited to no more than 134 single family dwelling units. Second Reading at Council On October 3, 2019, Council approved SF-6-CO zoning with additional conditions on 2nd reading only. The additional conditions related to building materials, wildfire fuels, location of water source, access roads, and connectivity. See Minutes, pg. 28, Item No. 76: Motion made by CM Flannigan and seconded by CM Casar. Vote: 9-1, CM Pool – no. The backup materials for No. 76 included the staff report and the Revised NTA. See pg. 22 of the staff report. The backup materials also included a public restrictive covenant that was signed by the applicant but not by the Law Department. This public restrictive covenant only addressed the NTA. However, because Council only approved the ordinance on second reading, the Law Department did not sign or record this public restrictive covenant. Third Reading at Council On October 31, 2019, Council approved SF-6-CO. See Minutes, pgs. 14-15, Item No. 44: Motion by CM Flannigan and seconded by CM Casar. Vote: 8-3 MPT Alter, CM Tovo, and CM Pool – no. The backup materials for Item No. 44 included the staff report and the Revised NTA. See pg. 21 of the staff report. The backup materials also included a public restrictive covenant that addresses the NTA and wildfire concerns. The conditional overlay requires two access streets or access points to an external street unless the development includes 30 or fewer residential units or the director determines that: (1) an additional emergency access point to an external street is provided; and (2) the completed development or uses of Milky Way (considered cumulatively with all existing or previously authorized development and uses) generates traffic that will not exceed 1,200 trips per day on Milky Way Drive as measured by the greater of a tube count taken at the time of site plan or the number in the ITE Trip General Manual. The conditional overlay also includes certain criteria for the access streets. See Ordinance No. 20191031-044. NEIGHBORHOOD TRAFFIC ANALYSIS A neighborhood traffic analysis (NTA) assesses the effect of a proposed project on a residential street. See City Code Section 25-6-112. More specifically, an NTA evaluates the existing and projected operating levels of a residential street and an identification of mitigation measures to minimize adverse traffic effects. City Code Section 25-6-114 establishes when a NTA is required. Restrictive Covenant for Zoning Case No. C14-2018-0124 Memorandum to Zoning and Platting Commission March 28, 2022 Page 4 of 4 In this instance, an NTA was required and was completed based on the applicant’s initial request to rezone the property to SF-1-CO (Original NTA). However, the Original NTA was revised on July 22, 2019 (Revised NTA) because the applicant changed the rezoning request to from SF-1- CO to SF-6-CO. Both the Original and Revised NTAs concluded that the proposed rezoning would not exceed the desirable operating levels for Milky Way Drive established in City Code Section 25-6-116. The Revised NTA was the NTA in Council’s backup materials. PUBLIC RESTRICTIVE COVENANT AND CORRECTING RECORDED DOCUMENTS To ensure that a future purchaser is aware that the City conducted an NTA for a specific property based on a specific zoning/rezoning application, the City utilizes public restrictive covenants. On October 31, 2019, the applicant signed a RC that concerned the NTA. See Exhibit A. The RC states: Development on the Property is subject to the recommendations contained within the Neighborhood Traffic Analysis (“NTA”) memorandum from the Land Use Review- Transportation Section of the Development Services Department (the “Department”), dated March 13, 2019. The NTA memorandum shall be kept on file at the Department. The Law Department signed this RC “approved as to form” after Council acted on October 31, 2019. This document was subsequently recorded. Subsequently, the applicant alerted City staff that the RC did not reference the correct NTA. City staff reviewed Council’s backup materials and verified that the RC erroneously referenced the Original NTA. To address this error, the City and the applicant executed and recorded a correction affidavit. See Exhibit B. Texas Property Code Sections 5.027-5.029 provide statutory guidance on how to appropriately correct recorded documents. These provisions preserve the validity of transactions while still ensuring accurate official records. Correction instruments recorded in the property records in accordance with these sections serve only to ensure accuracy within the property records. They are not independent transactions and do not convey any property interests. CONCLUSION In this instance, the controlling NTA is the Revised NTA since it was associated with the amended request and was included in Council’s backup materials. This means that the RC contained an incorrect reference to the NTA and that recording a correction affidavit was appropriate. Furthermore, neither party amended nor terminated the RC by recording the correction affidavit. Therefore, Council approval was not required.