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An Update on the Petition Rights Lawsuit

Below is an update on the Petition Rights lawsuit from BCRC VP Grayson Cox, one of the plaintiffs in the suit:


STATEMENT ON VALID PETITION LAWSUIT RELATED TO THE GROVE

On Thursday, August 18th, Judge Dietz formally dismissed the valid petition suit between neighbors of The Grove and the City based on jurisdictional reasons. This news has generated a lot of confusion, and below are answers to the most common questions we’ve received:

What does dismissal based on jurisdiction mean? It means that the judge was concerned that deciding the case based on merits *prior* to City Council voting on The Grove PUD might be considered an improper “advisory opinion” that could be overturned on appeal.

Does this dismissal mean the neighbors lost? Nope! It means that neighbors must wait until a Council vote on the PUD in order for the case to be “ripe” for judgment by the court. The merits of the case were not considered in this decision to dismiss based on jurisdiction.

Was this lawsuit against ARG, the developer of The Grove? Nope! The valid petition suit was filed by neighbors of the proposed development against the City. This action was decided by both City staff, Council offices, and neighbors as the best way to resolve this legal question about the mandatory valid petition statute in State law. Neighbors and the City both wanted to get this legal question resolved as quickly and efficiently as possible. Unfortunately, ARG intervened in the lawsuit as an “interested party” and immediately threw up every roadblock possible for delaying a decision on the merits of the case. The only entity in this lawsuit that argued *for* a dismissal was ARG – not the City and not the neighbors.

Why did ARG want the lawsuit dismissed? Your guess is as good as ours, but it is somewhat ironic that ARG claims they are confident that mandatory valid petition rights can be denied in their zoning case but are also the only entity that tried to stop a judge from determining if that curious legal interpretation holds true.

Does this dismissal make it less likely the neighbors will win when they refile the lawsuit? We like to believe that the judges who reviewed this case saw the merits in our arguments regarding the mandatory valid petition statute in state law. Therefore, they wanted to make sure their affirmative decision to uphold State law could not be seen as an “advisory opinion” prior to an action by the Council.

We are more confident than ever that the mandatory valid petition statute applies to The Grove PUD’s zoning case and look forward to when the district court agrees with the plaintiffs and the 426 Austinites who filed two amicus briefs supporting our case.

Thank you!

Grayson
One of the Many Plaintiffs Fighting for Equal Property Rights

Your Emails DO Work!

A message from BCRC President Sara Speights:

———

Dear Neighbors of The Grove,

Last night was living proof that your emails ARE read and DO work.

The Austin Parks Board voted to notify the City Council that they support the park staff’s finding that the proposed park for The Grove at Shoal Creek is not sufficient to be considered “superior.”  This is important because one of the criteria a developer must meet in order to get a Planned Unit Development (PUD) status is to secure this “superior” designation in at least several areas.  Does this kill the development?  Absolutely not.  But it does give the Council more reason to put pressure on the developer to improve the proposed park.  BCRC does not want to kill this development; we just want to improve it.  Like our signs say, “Build a better PUD.”

 But back to your emails….Some board members were dubious about the proposal because they had never voted to send a message to City Council.  But as one board member said, she received some 150 emails—most of them personally written letters—supporting the BCRC positions.  She said the board members have never received more than 4 or 5 emails on a single subject before.  She said they also received about 50 emails—almost entirely form letters—from those who supported the developer’s position.

Our special thanks go to Board members Alison Alter and Francoise Luca who persuasively led the board to support the staff finding.  Alter lives in Rosedale and is Council member Sheri Gallo’s appointee to the board.  Luca lives in Allandale and is Council member Leslie pool’s appointee.  Also voting with us were Board Chair Jane Rivera (CM Ora Houston’s appointee), Richard DePalma (Mayor Steve Adler’s appointee), Rick Cofer (CM Kathie Tovo’s appointee), Alesha Larkins (CM Delia Garza’s appointee).

If parks are important to you, please consider sending these board members a “thank you” note.

Sara Speights

Resolutions by the ANC and HPNA

Support for the BCRC’s goal to “Build a Better PUD” is growing! Recently, the Austin Neighborhoods Council voted unanimously to support a more appropriately scaled Grove development that mitigates its impact to our surrounding neighborhoods. The Hyde Park Neighborhood Association also recently voted to do the same. Both resolutions are very comprehensive and can be viewed at the following links:

ANC Resolution:

http://www.bcrcatx.org/wp-content/uploads/2015/08/Austin-Neighborhoods-Council-Resolution.pdf

Hyde Park NA Resolution (see page 3):

http://www.bcrcatx.org/wp-content/uploads/2015/08/Hyde-Park-NA-Resolution.pdf

Important Update Regarding The Grove PUD

The BCRC learned yesterday that City staff’s preliminary report does NOT recommend The Grove PUD as superior at this time.  It turns out that the City’s professional reviewers have found the same major problems with The Grove PUD that the BCRC and neighbors have been expressing for over a year.

 As you have likely heard before, City Code requires that a PUD application be found “superior” to conventional zoning in exchange for significant development flexibility and entitlements.  City staff told the developer on Friday that they could not recommend The Grove’s PUD application to Council in its current form.   Specifically, staff finds The Grove does not meet the superior standard in two priority areas:

(1) Traffic/Transportation – the developer is proposing over 3 million square feet of development, and staff believes the PUD cannot achieve superiority in transportation with this significant amount of development on the limited neighborhood streets serving The Grove’s site.  According to staff, the only way to achieve superiority in this category would include lowering the amount of proposed development.

(2) Parkland – staff finds the minimal number of parkland acres in the PUD to not be superior.

 Staff has found that The Grove meets superiority in two areas:  (1) affordable housing by committing 5% for-sale and 10% rental units be affordable, and (2) environmental/drainage by including a “grow zone” along Shoal Creek and letting the City decide to require on-site storm water detention or fee in lieu of detention.

 Jerry Rusthoven, Development Services Manager, told the BCRC that he expects the developer to come back next week with some alterations to the proposed PUD.  If staff and the developer find agreement on a revised PUD application, The Grove could move to the Environmental Commission as early as May 18.  If staff and the developer cannot find agreement, The Grove may still move to the commissions and Council without a positive staff recommendation.

  Stay tuned for updates on staff’s final recommendation and the public hearing schedule…

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Update on The Grove and Possible Public Hearing Schedule

Hi Neighbors!

 It’s time to bring you an update on the proposed Grove development.  First, a look at the schedule:

 The City Environmental Commission will NOT hold a hearing on the proposal May 4, next Wednesday.  We were notified by City staff that the planning and zoning staff has NOT completed its review and recommendation for the development.  It is important that we all be prepared to voice our concerns to these boards and commissions, as well as the City Council.  That’s how democracy works best!  The next possible schedule for hearings looks like the following.  Please note this is subject to change, and we will keep everyone informed if it does.

 May 18—Environmental Commission.  Topics covered: protecting the heritage trees, air quality affected by traffic, noise generated by the development and traffic, whether park space is adequate, proper drainage and any threat to future flooding downstream, etc.  You still have time to write your letters to this commission to express your concerns!

May 24—Parks Commission.  Topics covered: whether The Grove’s proposed park space is inadequate to be considered “superior.”  (Remember that PUDs are required to be superior to conventional zoning to justify the greater flexibility and entitlements PUD zoning affords.)  The Grove is currently unwilling to provide park space beyond the bare minimum required under conventional zoning, and we agree with Parks staff that The Grove’s parkland proposal is NOT superior.

 June 7—Zoning and Platting Commission (ZAP).  Topics covered: everything!  ZAP is charged with looking at the entire PUD and recommending to the City Council whether this development is “superior.”  ZAP is incredibly important so mark your calendars!

 June 16 or June 23—City Council could take this development up for a final vote as early as one of these dates.

Also in the works…

 As you probably know, a group of neighbors immediately surrounding this property filed suit against the City this past week challenging the City’s interpretation of a State law that has been on the books since 1927.  This law says that if 20% of the property owners within 200 feet of a proposed change in zoning protest that change, then the change can only be approved if three-quarters of Council approves the change.  This right is afforded to ALL property owners in Texas, but the City claims that neighbors around The Grove site do not have these rights because the tract of land was previously unzoned.

 The lawsuit asks the judge to stay any City action on The Grove PUD until the court can decide which interpretation is correct.  This could delay some of the hearings mentioned above.

 Traffic Analysis…

 On another issue, the developer has, so far, refused to share with us the data file prepared by their traffic engineer for the “Traffic Impact Analysis.”  This data file (called a Synchro file) is needed to see whether the 19,400 new vehicle trips per day created by this development could actually move through critical intersections.  We simply want Rosedale’s newly-hired traffic engineer to complete an *independent* review of the Synchro file.  The Grove proposes to put an unprecedented amount of traffic on our neighborhood streets, and it should undergo an unprecedented level of review and scrutiny.

 The City legal department, rather than deeming this data file public information, punted the issue to the Texas Attorney General for a determination on whether this is public information.  The Attorney General is not required to render an opinion until the end of May.  When we asked the developer again last week if he would release this data file to our traffic engineer, he said no.

 Facilitated meetings…

 The BCRC board has begun a series of intensive weekly meetings with the developer and a facilitator to try and find reasonable compromise solutions to the concerns expressed by the neighborhoods.  It is too early to tell if significant progress can be made, but we remain hopeful and we feel that the last two meetings have been more productive than the previous year of meeting with the developer.  So stay tuned!

 For more information and recent media stories…

www.facebook.com/bullcreekroadcoalition

www.bcrcatx.org

Press Release on Lawsuit: https://drive.google.com/file/d/0B6-feEnOfVkIWGtWNTZnVXh5Y1k/view

KUT Article: http://kut.org/post/neighbors-divided-over-planned-75-acre-shoal-creek-development

Statesman Article: http://www.mystatesman.com/news/business/neighbors-sue-city-of-austin-over-proposed-grove-p/nrCzR/?icmp=statesman_internallink_referralbox_free-to-premium-referral

Thank you!

Sara and Grayson

BCRC

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