• Staci Livesay

"Shot clock bill" speeds up Development Approval Process

Updated: Sep 16, 2019

Builders and developers often want their plans to get their day at City Hall or the county courthouse as quickly as possible. Through a new state law, they're getting that wish — to the befuddlement of large local governments such as Austin now grappling with stricter timelines for weighing the merits of individual projects.

House Bill 3167 went into effect Sept. 1 after it passed the Texas Legislature earlier this year. The so-called "shot clock bill" requires local governments to take action on all subdivision applications within 30 calendar days.

"We have to, as a city, take action to approve, disapprove with reason or approve with conditions within 30 days," Austin Development Services Department Assistant Director Andrew Linseisen told members of two city land use commissions Sept. 5. "That is extremely fast."

"It has a lot of other unintended consequences that come out of it," he added.

The law prohibits city staff from making new review comments after that initial 30-day period. Updates to subdivision applications must be acted on within 15 days. And applications are automatically approved if they aren't acted on before those 30-day and 15-day windows close.

"If we have not commented or taken action, it's just approved," Linseisen said. "There's no recourse on that." Linseisen said the city has made a variety of tweaks to its review process in order to comply with the new law.

"It's really fast. If this had been 90 days, 120 days [or] something like that ... we could have come up with a completely different strategy," Linseisen said. "But the 'take it, review it [and] get it on a commission agenda in 30 days' is a really difficult task."

Business groups such as the Texas Land Developers Association, the Texas Apartment Association and the Home Builders Association of Greater Austin supported the bill, according to the Austin American-Statesman.

The HBA said it partnered with Rep. Tom Oliverson, a Cypress Republican, to push for the bill during the 86th Texas Legislature in 2019, arguing it would make the development process more predictable and timely across the state. The Real Estate Council of Austin took a more measured approach. Geoffrey Tahuahua, RECA's vice president of policy and government affairs, said in a statement to Austin Business Journal that the organization "has always supported a more efficient permitting process with more predictable timelines."

The statement continued: "Over the last several years, our subject-matter experts, both volunteers and professional staff, have deeply partnered with Austin’s Development Services Department and Travis County in order to implement a number of process improvements. While this specific piece of legislation was neither RECA-driven nor sponsored, we commit to working with our counterparts at the city, county and state as we work through the challenges and opportunities associated with this new law."

Brie Franco, the city of Austin's intergovernmental relations officer, said HB 3167 was a difficult bill for the city to lobby against during the legislative session, suggesting cities and counties didn't get a fair shake at raising their concerns.

"They said they negotiated with stakeholders and the stakeholders they mostly negotiated with were developers," Franco said of state lawmakers. "We were not included in those conversations."

Deeper dive into new law

Some approvals for smaller projects may now move forward on an administrative level without the support of a land use commission, such as re-plats or re-subdivisions for up to four lots.

Linseisen said subdivision requests are now poised to go to either the Zoning and Platting Commission or the Planning Commission, depending on how the meeting calendar lines up. Commissions will need to cite specific sections of code when denying an application or approving it with conditions — leading one ZAP commissioner, Eric Goff, to suggest they could need help from city legal staff in crafting their motions.

Certain applications could receive multiple votes of approval in quick succession. For example, plats under Title 30, the shared Austin-Travis County code for subdivision development, could go before Travis County commissioners on a Tuesday morning and then go to a city land use commission later that evening.

Postponements are also poised to become a lot less frequent.

"We have a pretty long history of things being postponed — 'we want to talk about this some more,'" Linseisen said. "That can't happen now or it'll be automatically approved. ... There is no way around it." Linseisen noted the city's legal department doesn't believe the "shot clock" applies to site plan approvals.

But Linseisen warned that some cases will head to commissions without complete staff recommendations and reviews — or all the backup material typically behind those reports.

"It's really an anti-transparency bill, in my opinion, from how we're forced to act," he said. "Some smaller cities that don't have a lot of applications or a lot of code are able to review everything in a week and that's fine. But a city the size of Austin or San Antonio or some of the larger municipalities can't accomplish that." "So that's going to be really challenging for you as commissioners, us as staff and for our citizens," he added.

Austin city government has worked to improve its permitting and review processes since the 2015 Zucker Report, which detailed systemic issues with delays and customer service. A recent city audit found the Development Services Department was reviewing 73% of subdivision applications on time — below its goal of 90%. But Linseisen said he's now telling staff there's "zero tolerance" for being late with application reviews.

"The state just moved our performance measure to 100% on time," he said. "We can't be late — period."

The first subdivision application subject to the new law's timelines will likely appear before a city land use commission next month, according to the Austin Monitor.

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