Letter Sent on Behalf of Six Organizations to City Council Concerning the Land Development Code
November 20, 2019
To: Mayor Adler and Austin City Council
CC: Planning Commission, Environmental Commission, Chris Herrington, Matt Hollon, Erin Wood, Annick Beaudet
RE: Recommendations regarding watershed and environmental issues in the October 4 land development code draft
The following recommendations are the result of a joint effort of several environmental organizations analyzing the draft land development code of October 4, 2019. Our goal was to identify how the draft code aligned with Imagine Austin priority areas of Water and Environment as well as City goals and policies such as reducing per capita water use through Water Forward and increasing climate resilience. We applaud the attention to these issues in the current draft, especially the efforts made by the Watershed Protection Department, but have also identified lost opportunities that we hope will be corrected before code adoption.
We provide these recommendations for the benefit of City Council and staff to understand how a new code could and should improve watershed and flood protection measures, ecosystem services, and community resilience. As Austin continues to grow, our development policies must ensure that residents have an improved rather than degraded quality of life; for example, that they are not affected by increased localized flooding events, inadequate infrastructure, diminished water quality, or reduced access to nature in the City.
Thank you for your attention to these issues.
We strongly support that the current code draft:
● No longer allows an exception to flood mitigation requirements for redevelopments that are not increasing impervious cover. (23-9E-3010)
● Requires site plans and residential subdivisions, including roads, to use Green Stormwater Infrastructure for water quality treatment.
● Requires surface parking lots to include tree islands, landscaped medians, and perimeter landscapes and requires that pavement to be graded to allow runoff to enter planting areas. (23-3D-3050, 3060 and 3070).
● Requires that all subdivisions and site plans in Urban Watersheds be required to meet steep slope protections. (23-4D-8030)
● Adds a new requirement that sites performing grading must protect soils from compaction or restore compacted soils after construction.
● Amends the trigger for water quality control requirements to “If the total of new and redeveloped impervious cover exceeds 5,000 square feet.” (23-4D-6010(B)(3))
● Adds Functional Green, recognizing that ecosystem services should be provided throughout the City.
● Adds the proposed requirement from Water Forward that all new multifamily, mixed-use and commercial development projects of 250,000 sq. ft. or more (whether in one or more than one building) be dual plumbed and use reclaimed water for nonpotable uses if they are within 500 feet of a reclaimed water line. (23-9D-1030(B))
● Adds the proposed requirement from Water Forward that all new multifamily, mixed-use and commercial development projects of less than 250,000 sq. ft. (whether in one or more than one building) be dual plumbed and use reclaimed water for nonpotable water uses if they are within 250 feet of a reclaimed water line. (23-9D-1030(A))
● Adds the proposed requirement from Water Forward that all new multifamily, mixed-use and commercial development projects of 250,000 sq. ft. or more (whether in one or more than one building) that submit a site plan after December 2023 install an onsite water reuse system. (23-9D- 1050)
● Adds the proposed requirement from Water Forward for water benchmarking and water balance calculation. Benchmarking and water budgeting will allow developers to work with AWU staff to determine how much water buildings can collect and how much is needed for specific purposes. (23- 9D-1040)
● Adds new enforcement mechanisms that would discourage the illegal removal of Heritage Trees (23- 4C-1090(B)(2)
Please make the following changes to the code before adoption to prevent lost opportunities to have a green, climate-resilient City. We recommend:
1. Remove exemptions to impervious cover limits in the redevelopment exceptions throughout the water quality section (23-4D-2030, etc.) for all watersheds. Redevelopments should adhere to their zoning, including impervious cover limits. Currently, redevelopments are exempt from current impervious cover limits, assuming they treat for water quality for the redeveloped portion of the site. To illustrate the importance of this, we are likely to have much redevelopment along major corridors, such as Lamar and Burnet Rd. These areas have very high impervious cover, were largely built before the 1992 watershed ordinance, and contribute significantly to flooding. As currently drafted, redeveloping properties must use water controls on the redeveloped area but are exempt from impervious cover limits and other water quality protection standards if they do not increase impervious cover. These properties must do their part in the future to reduce flood and water quality risk.
2. Address lot-to-lot flooding in the code and inspections process. We are not satisfied that the staff’s latest recommendation regarding lot-to-lot flooding will adequately address the problem. They have proposed: “To address lot-to-lot drainage issues, publicize and enforce a section of the Plumbing Code that requires stormwater runoff to drain to a storm drain or other satisfactory location.” This strategy seems likely to be unsuccessful in preventing lot-to-lot flooding, given that enforcement is not currently happening, and it is a retroactive approach that places the burden on nearby neighbors to report a problem. We understand the concerns regarding the Engineers Certificate proposed in CodeNEXT Draft 3, particularly the affordability argument for homeowners building an ADU or addition. For this reason, we suggest putting the onus on the City to include lot-to-lot drainage in the inspections process for development. Inspectors should be trained to visually identify when there may be a problem and ask that appropriate measures, such as grading and swales, are implemented to prevent localized run-off before it occurs.
3. A better analysis should be done regarding expected impervious cover changes. The analysis undertaken by City staff showing allowable impervious cover increases today and in the new code was a good start. However, an additional analysis that shows the impervious cover on the ground today compared to expected impervious cover over the next 20 years would be very helpful in understanding what the real increases in impervious cover might be and what other land development code policies might mitigate this change. This will also be helpful in informing the City’s Green Infrastructure Plan.
4. Before or shortly after the code adoption process, undertake science-based watershed planning to inform zoning appropriate to location within a watershed and where water quality and drainage facilities should be relative to where a property is in a watersheds and what flood and water quality challenges that watershed is facing. Just as gentrification was applied as a factor for zoning, flooding and water quality concerns should also be a factor in any zoning suitability analysis.
5. Remove the commercial irrigation requirements in the landscape section. This creates more flexibility for developers and property managers on how they maintain their landscape, while saving water. Requirements should reduce rather than increase water demand. A one-size fits all approach to irrigation, with the singular goal of keeping plants alive, is at direct odds with our water conservation goal to reduce water demand through Water Forward. The commercial irrigation requirements in the code are likely to transform previously unirrigated areas associated with old commercial establishments into irrigated area as new development occurs thus increasing our City’s per capita water use.
6. Maintain parkland dedication requirements. Because access to parkland is important for all residents, regardless of housing type, we encourage the City to maintain all existing parkland dedication requirements for the benefit of residents that live along core transit corridors, within activity centers, and in missing middle housing. As drafted under Article 23-4B-22 (Parkland Dedication), it is unclear whether it is the intent of the City to require parkland dedication for residential construction that does not require full site plan review, such as missing middle housing. Because access to parkland is important for all residents, regardless of housing type, we strongly encourage the City to apply parkland dedication requirements for missing middle housing. If the intent is to exempt residential properties with fewer units, we would encourage the City to consider some threshold that could apply, regardless of whether a site plan is required.
7. Base the parkland fee on the total units approved. Sec. 23-4B-1030(D) in the draft code establishes a process to submit a parkland assessment to determine the parkland dedication required for a proposed project. However, the proposed code would allow the total number of units for the project to change by up to 10%, without modifying the parkland dedication fee that was assessed. Under this scenario, a developer could submit a parkland assessment based on 200 units, but ultimately build 240 units without recalculating the fee for those additional 40 units. Over time, such a system of “underbidding” at the time of parkland assessment could add to the significant deficiencies in our parkland system. We would recommend modifying this section to clarify that the parkland dedication or fee-in-lieu amount will be based on the total units ultimately approved and built.
8. Remove the administrative variance to permit the removal of Heritage Trees on properties that front transit corridors. Under Section 23-4C-3050(C), the draft LDC Rewrite proposes an administrative variance to permit the removal of Heritage Trees on properties that front transit corridors. The Heritage Tree Ordinance was adopted to protect the urban tree canopy, which is critical for the ecological health for our community, in addition to providing other social, cultural, economic, and aesthetic benefits. As we continue to urbanize, the need to protect these Heritage Trees becomes greater.
The few Heritage Trees that remain on our transit corridors are assets to those spaces, providing shade, reducing urban heat island effects, and helping add a sense of nature, history, and human scale in an otherwise urbanized environment. They keep these streets from feeling stark and desolate, and it should be a priority to protect them. Our concern is that an administrative variance would be considered a green light for the removal of these trees, as we have seen many times over the years with administrative variances for other trees across the City.
9. Functional Green should apply to more parcels throughout the City. We support Functional Green as a tool for increasing ecosystem services throughout our City, including our most urban areas. According to a Sept. 3, 2019, Memo by the consultants on Functional Green, The Nature Conservancy & Regenerative Environmental Design, “Biotope area factor policies like Functional Green can be successfully applied to a range of urban sites with lower impervious cover.” They recommend a calibration study be undertaken for these lower impervious cover sites.
The City should follow through on this recommendation to lower the threshold of impervious cover where Functional Green would apply, properly calibrate the program for these less impervious sites, and adhere to the other recommendations made by the consultant team in the Sept. 3 Memo, including on refinement of the Functional Green scoring system and an outreach strategy related to the new program. We understand that the calibration may take some time after code adoption for a lower threshold Functional Green Requirement to take place, but ask that the code that is adopted includes place-holder language so that expansion of this program in the next couple of years is easily enacted.
10. Restore a water retention requirement, similar to the Beneficial Use of Stormwater provision in drafts 1 and 2 of CodeNEXT which required sites to keep rainfall from smaller storms on-site. Previous language stated: “A portion of the required capture volume for water quality must be retained and beneficially used on-site through practices that infiltrate, evapotranspirate, or harvest and use rainwater.” A retention requirement should be required of all site plans including Site Plan Light and we recommend that this requirement be housed within the landscape section rather than water quality section of the code, recognizing that (1) water retention on site has numerous ecological and conservation benefits beyond water quality treatment and, (2) retention need not be designed like a traditional water quality treatment facility if it is not also meeting that code requirement.
Currently, stormwater is detained and released downstream 48 hours later. Without an on-site retention requirement, we are not meeting important goals such as enhancing creek baseflow, improving soil moisture, and promoting beneficial reuse of stormwater to conserve potable water. Retention is also useful throughout the City, not only for parcels that meet threshholds for water quality or flood requirements. Landscaping that retains water, (think a bowl rather than a hill), can also create wildlife and pollinator habitat. This retention provision was removed from CodeNEXT when it was expected that the Water Forward Plan would be the appropriate vehicle for making a recommendation on retention volumes. No such retention requirement made its way into the Water Forward Ordinance language and therefore, it is appropriate to add this provision back to the code.
11. Map F25 zoning for properties that can develop using outdated water quality regulations in the Barton Springs Zone to leave room for negotiating better standards. Many properties in the Barton Springs Zone may develop under outdated environmental regulations, because they have grandfathered regulations based on development agreements or similar instruments. These agreements that may date from the ‘80s or ‘90s often contain provisions that would not be agreed to today and create water quality risk in the Barton Springs Zone.
Some of these agreements are in place for greenfield sites, that should be developed under current water quality protection standards. Often, the rezoning process is the best tool available to the City to negotiate with the owners of these properties to improve water quality regulations.For example, the City might agree to an increase in height, if the landowner were to reduce the total allowable impervious cover for the project or agree to install SOS-standard water quality ponds.
To allow these negotiations to occur, we recommend that properties subject to, and benefitting from, negotiated development entitlements through development agreements, settlement agreements, site-specific amendments to the SOS ordinance, or other instruments which can be used as the basis for vested rights (e.g., Lantana Settlement Agreement, the Oak Hill Area Study Restrictive Covenants, etc.) not receive increases in development entitlement(changed zoning) with code adoption.
12. Maintain the SOS Ordinance, without amendment. We respect and appreciate the Watershed Protection Department staff’s decision to remove the proposed amendments to the Save Our Springs Initiative (SOS) ordinance. Although various parties may disagree on the results, we can all acknowledge that the intent of these amendments was to improve the overall water quality conditions for the Barton Springs Zone. As a voter-approved ordinance, modifications to it require special attention and an enhanced stakeholder process. We welcome the opportunity to continue to collaborate with the Watershed Protection Department in a future stakeholder process, to make improvements to the regulations that apply to developments within the Barton Springs Zone, with the goal of maintaining the best possible water quality conditions for Barton Springs and the Edwards Aquifer.
13. Add language clarifying that multi-family, mixed-use, and commercial developments smaller than 250,000 sq. ft. will also be required to use Reclaimed Water and On-site ‘Alternative’ Water by a certain date and no later than 2030, consistent with Water Forward. Reclaimed and alternative water sources help keep Austin’s water supply secure and affordable. Austin’s 1999 contract with the LCRA to augment its ‘run of the river’ water rights cost us $100 million for the right to this water, with no further payment required until it averages 201,000 ac. ft. over a two year period. Austin has already delayed the 201,000 ac. ft. ‘trigger’ through robust conservation programs. We can continue postponing this trigger with AWU reclaimed water (purple pipe) and alternative water captured onsite (including AC condensate, rainwater, stormwater, treated greywater and treated blackwater), saving money for the entire community and helping to prevent water security issues.
Alternative water sources can be created in areas of the city unserved by reclaimed water lines, and can provide water during times of extreme drought when the use of Colorado River water is limited for the benefit of downstream users and environmental flows.
Any cost-benefit analysis of the use of reclaimed and onsite water must take avoided water bills into account along with the up-front cost of dual plumbing and the cost of operation and maintenance, particularly for projects that include housing. This is an affordability and social equity issue: high utility bills are a major driver of eviction and displacement.
14. Enact a conservation subdivision code for greenfield sites. This policy should apply to subdivisions on greenfield sites above a certain size threshold. In order to be effective at its goal of clustering development and preserving valuable natural spaces, this policy should be tied to a clear vision and map of priority lands to be preserved including ecological factors such as location in a watershed, high quality habitat, and connectivity for humans and wildlife. These conserved natural areas can preserve wildlife habitat and ecosystem function while also providing recreational opportunities through nature trails. San Antonio recently enacted a voluntary conservation subdivision code.
We ask that the City Council include our recommendations in the new code. It is important that as other Imagine Austin priorities are met, our future land development code is truly green and protects residents and ecological systems from the dangers of flooding, erosion, ecological degradation. We encourage the City of Austin to shift to a sustainable development paradigm that places greater value on the environmental and social benefits provided by strong ecological health.
Angela Richter Executive Director Save Barton Creek Association
Bobby Levinski Attorney Save Our Springs Alliance
David Foster Texas State Director Clean Water Action
Luke Metzger, Executive Director and Anna Farrell-Sherman, Clean Water Associate Environment Texas
Christy Williams Sierra Club, Austin Group
Carmen Llanes Pulido Executive Director Go! Austin/ ¡Vamos! Austin (GAVA)
Questions or comments may be directed to SBCA Executive Director, Angela Richter at firstname.lastname@example.org