Pilot Knob zoning approved without fee waivers

With the threat of litigation hanging over their heads, City Council members on Thursday gave final approval to zoning for the Southeast Travis County Pilot Knob/Easton Park development. The vote was 9-1-1, with Council Member Don Zimmerman voting no and Council Member Ellen Troxclair abstaining.

The planned unit development agreement did not include waiver of Austin Water Utility fees or fees for development services. It was, of course, Council’s previous attempt to divert the utility fees into affordable housing that caused local activist Brian Rodgers, who had already sued the city once over AWU fee waivers for Pilot Knob, to threaten new litigation.

“It took 11 months but I’m pleased that the Mayor and Council finally awoke to the illegality of their impact fee diversion scheme and its potential to cause great harm to the finances of AWU,” Rodgers told the Austin Monitor via email after Thursday’s Council action.

Rodgers’ earlier suit, which he won, claimed that the city had violated the Open Meetings Act by failing to post sufficient information on the Council agenda to allow the public to know that Council would be considering the fee waivers. Judge Stephen Yelenosky voided that deal by his ruling last month.

In that same lawsuit, Rodgers claimed that the city had violated state law when it approved the fee waivers because the amount of affordable housing was insufficient. However, the judge did not rule on that portion of the lawsuit because the ruling on the Open Meetings Act violation was definitive.

Rodgers had some more advice for Council, too. “They should also delete that section of the S.M.A.R.T. Housing Guide dealing with 100 percent fee waivers for only 5 percent or 10 percent affordable housing. It permits a mammoth giveaway for little benefit.”

The staff of Mayor Steve Adler and Council Member Delia Garza were the architects of the original fee waiver plan for the development, which is outside the city limits. When the item was posted on this week’s agenda, it showed a plan that would have cost the utility $51.49 million and the Development Services Department $17.8 million in fees diverted into a slush fund that the mayor said could be used for anything.

However, on Thursday, Adler presented an amendment that included no fee waivers or diversions. According to that amendment, the development will include at least 10 percent of owner-occupied residential units that “will be made permanently available at a price affordable to households with incomes at 80 percent of or below” Austin’s median family income.

He explained that the city and the property owner will enter into an affordable housing agreement at a later date to show how permanent affordability will be implemented.

Pilot Knob developer Brookfield Residential began the development process last winter, but it needed Council action to legitimize the zoning it had presumed was legal when it began building the development.

Council Member Leslie Pool said that she wanted to make sure that members of the Water and Wastewater Commission would be consulted about any proposals for fee waivers.

Adler, Garza and Council Member Greg Casar were especially keen on using the utility money to build affordable housing. In fact, Casar on Thursday referred to the fact that they were trying to create a new policy with Pilot Knob that would lead to similar deals on other projects.

Adler said he expects staff to take two to three months to consider how to fund more affordable housing at the development. However, with the loss of the major tool they had planned on using — utility money — it is difficult to see how they will find the millions of dollars they would like to put into affordable housing.

Pilot Knob began as a municipal utility agreement and included a requirement that 10 percent of multifamily units be affordable. That requirement will remain in the new agreement, but AWU Director Greg Meszaros confirmed that none of those fees will be waived or diverted, either.

Photo by Straley – Own work, CC BY-SA 4.0, Link

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