City Seeks to Redefine Open Spaces in Development Requirements

by Gayle Goff, Linda Land & Toni House

In Summer 2011, City Council initiated a review of the ordinance requirements for private open space that developers would be need to provide when creating commercial and multi-family developments (Resolution No. 20090514-036.) Council directed staff to review and make recommendations on modifications to the city-wide standards and criteria for what qualifies as open space. The resolution further stated that the proposed revisions should consider the needs of families and children, including child-friendly features such as interactive play spaces, art, requirements for public access, bicycle and pedestrian connectivity, and the functionality of the open space provided.

The proposed ordinance changes now being discussed, and that are supported by staff, are intended to clarify when and how open space is to be provided, and also sets forth requirements for amenities and design of the space. However, we are extremely concerned that many issues regarding the changes have not been addressed. The proposed changes raise serious questions as to the NET RESULT of the changes, both in terms of the actual amount of open space provided in current and future projects and the impact on our under-funded public parks. (City Council hearing on 10/20/11.)

We are very concerned about these proposed changes, and urge you to email Council asking them to ensure that the proposed amendments do not over-burden existing parks by increasing density without requiring sufficient on-site personal open/green space and that the proposed amendments do not adversely impact Neighborhood Planning Areas (“NPAs”) that already suffer from a lack of parkland and access to multi-purpose trails. Austin has always been known for its parks and common greens.  Regulations to protect those spaces must apply equitably to all construction of new units and no one should be able to substitute for the open space requirement or buy out of it.

Here is a link to the City’s webpage with Councils’ contact information:  http://www.ci.austin.tx.us/council/contacts.htm

Below are what we have learned thus far, and our concerns (in italics):

1. The proposed changes will apply to any MF (apartment or condominium) buildings constructed after the effective date of the ordinance.

– Many negotiations have taken place relying on the current Open Space Ordinance requirements as a baseline for what a project must include. This proposal will change the rules on these projects without any site/project specific input from the public.

– What does “constructed” mean in this situation? Completed? Begun? And what about a multi-building project? Is percentage of open space computed by project or by building? Will modifications to approved site plans be reviewed by all departments? Will there be a fee charged for this? Notifications sent? How many existing site plans are there that would be affected by this proposed change?

2. The proposal includes a change in open space required from 2 percent of NET site area to 5 percent of GROSS site area

–How would this change affect actual projects both on the ground and approved?

–How will the deletion of the required minimum open space per dwelling affect the actual overall open space on both small and large projects?

–Has staff reviewed actual examples of the NET open space gained or lost? Actual examples should be provided applying the new formula of 5 percent of gross site area to see how this compares to the former language requiring 300 sq ft for MF-1, 200 sq ft for MF-2, 150 sq ft for MF-3 and 100 sq ft for MF-4 and 5.
–Are we losing open space?

3. The proposal allows for eliminating, under certain conditions, and under other conditions, reducing the need for open space if the developer provides affordable units.

How is it that providing affordable units replaces the need for open space?

–Do those with lower incomes need open space less?

–Does the fact that a development provides opportunities for those with lower incomes mean that all residents must do without open space?

–Why, because a developer provides affordable units, should the adjacent parks bear the impact of the increased usage his residents place on them? In most of the cases where developers have agreed to affordable units, they have already been compensated with other entitlements to do so (increased height, density, etc.) Provision of affordable units should NOT take the place of provision of open space.

This “swap” is especially offensive in areas already lacking sufficient parkland. In areas deficient of parkland BEFORE increased development and/or neighborhoods already identified by PARD as within the GAP analysis area, it is critical that developments provide the space their residents need.

All condo and MF developments that have received increased density are adding even greater burden to parkland. Providing affordable units does nothing to mitigate the increased usage the parks will have to bear.

4. Developer would have to pay fees in lieu if he claimed a hardship or that it was impractical to provide on-site personal open/greenspace, but there is no provision to ensure that the affected neighborhood would receive the benefit of those fees.

Waiving the requirement of open space for a development with affordable units based on its proximity to parkland makes no sense.

Should the impact of hundreds of units be ignored merely because they are near a park? For what good reason? The added impact of use on the park remains. Why doesn’t this ordinance take into account the number of units/residents relying on existing parkland/open space versus the actual square footage of parkland available to the surrounding community? How many persons is the parkland already being asked to support  This method would show the numerical burden our parkland is being asked to bear and in which cases provision of open space should be mandatory.

5. Whose definition of accessible parkland should the City use: PARD’s or this new definition?

PARD’s definition of what constitutes accessible parkland and multi-use trails should be used, not the definition currently proposed. Merely being within one-quarter mile of a park or trail does not mean that it can be safely and easily reached by residents. During PARD’s Long Range Planning, PARD staff was very clear that highways and arterial roads are major barriers to accessing parkland.

Measuring the distance from the “boundary line of the site to the nearest public entrance of the park or multi-use trail” is inappropriate. PARD’s Long Range Plan states: “[I]f a barrier exists, the service radius for a neighborhood park would not be a complete circle, and only that part of the service radius that is barrier free is available for use.”

Simply having a signalized intersection at a highway crossing or arterial road does not make that crossing safe for pedestrians or bicyclists. Many arterials and highway access roads have dedicated right turn lanes, for which there are no signals or crosswalks that require traffic to stop.  Intersections such as these are barriers, and should be recognized as such.

6. The proposal adds a new type of open space—Private Personal Open Space—and allows developers to include it their total accounting of Open Space provided within their development:

A personal balcony or courtyard of usually 6 to 24 square feet constitutes “open space”?

7. The proposed changes provide some specific elements of a project that may be counted toward the open space requirement. For example, a playground is described with some detail. But a water quality and storm water detention pond also counts if it is developed as an amenity.

Yet here the only definition of amenity is that the Director (we assume it means the Director of Neighborhood Planning & Development, but know for  sure) approves. What happens if it is a regional water quality pond and involves reimbursement from the City?  Or what if it was claimed as a community benefit in obtaining PUD zoning? What if it requires destroying a creek bed or removing a stand of trees to create it? And again, is this per building or per project? 

8. The proposal allows for “fees in lieu” instead of providing on-site personal private open/green space .

Accepting “fees in lieu” is an appalling policy in any situation. To allow any party to essentially “buy their way out of” regulations designed for the betterment of the community erodes the entire system of ordinances. Should fees in lieu be allowed, there should be a requirement that such fees must be used to provide green/open space within the affected Neighborhood Plan Area and in accordance with that area’s Priority List contained in PARD’s Long Range Plan.

8. Additionally, in 2.7.3 B—Location Criteria #7 states: “Public access easements may be required in order to guarantee public access to the facilities.”
Why is this not a requirement?