Houstonians for Responsible Growt

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Policy

Under a cover letter dated July 1, 2009 which introduces the 2009 edition of the City of Houston Infrastructure Design Manual, the City Engineer describes the document containing the most profound change in the regulation of development in Houston’s history as having been “primarily updated and revised to reflect changes to street paving requirements/standards in addition to traffic signals and related activities.” There is no mention of the regulatory impact in the new Traffic Studies (Traffic Impact Analysis) or Access Management sections under the innocuously named Chapter 15, “Traffic and Signal Design Requirements.”

In order to stop the Ashby High Rise, parts of Chapter 15 have been drafted to expand guidelines for the denial of permits for new development in the City of Houston. The new regulation in Chapter 15 is justified as a “technical” interpretation of two sentences found in Section 40-86 of the City Code:

“Sec. 40-86. Permit for construction of driveways.

(b) Upon receipt of an application for a driveway permit, the city engineer shall make a determination as to whether the driveway applied for is necessary to provide reasonable access to the private property consistent with the safety and convenience of the public, taking into account the following matters:

…(3) The effect that the passage of vehicles to and from the private property will have on the safety of the traveling public and on the movement of traffic in the street to which the driveway connects.

(c) After making such a determination, the city engineer shall grant or refuse the application in accordance with the following rules:

…(3) He shall refuse to issue a permit for any driveway opening as to which it has been found that the proposed use of the driveway would create an extraordinary traffic hazard or would excessively interfere with the normal use of the street right-of-way.”

By basing this new regulation on interpretation of existing code, the City can make the case that the new policy appropriately applies retroactively to projects already in the permit process. This expedient route to regulation allowed the City to claim the basis for its rejection of Ashby existed at the time Ashby was submitted for permit approval.

Chapter 15 of the Design Manual has been implemented as a “technical” interpretation of Section 40-86 in lieu of an ordinance. By placing this new regulation inside the Design Manual instead of the City Code, the Public Works Department bypassed the normal municipal legislative process of review by the City Planning Commission, the appropriate City Council subcommittees, and City Council itself.

Houstonians for Responsible Growth and other groups did not object to this approach at the time because the understanding was very few projects would be captured in the new more onerous regulation. However, the filters and triggers that would have protected most development from the regulation being used to stop Ashby are not in place especially along the new transit corridor streets in the Urban Corridors along the new and old Metro rail lines.

Many of the concepts placed in the Design Manual in Chapter 15 were in drafts of the High Density Ordinance or the Traffic Impact Analysis and Access Management Ordinance. Chapter 15 appears to be an ongoing work in progress. Only six of nineteen identified sections have been written. The current version contains significant references to sections that are not yet written such as Traffic Calming. Filtering or triggering processes that were previously developed for both of the ordinances mentioned above would have allowed most development to simply and easily escape the unnecessary scrutiny of a TIA. But these filters or triggers have not been effectively implemented as part of the new policy in the Design Manual. As a result many more projects will face the kind of scrutiny imposed on Ashby even away from the new Metro Rail lines.

The Traffic Studies Section of Chapter 15 lays out a Traffic Impact Analysis (TIA) process that requires projects that meet a minimum impact threshold to submit a Traffic Impact Analysis (or TIA) that must be approved by the city before permitting is allowed.

At the heart of this TIA process is the complexity of the traffic model. The process calls for the development of a traffic impact study which includes an extensive and expensive consulting report prepared by a licensed professional engineer solely at the Applicant’s expense. The goal of the TIA process is to:

“…identify the adequacy of the existing public right of way to accommodate any change in trips generated from a proposed development/redevelopment. If impacts are identified, potential mitigation measures (on-site or off-site) can be proposed and evaluated. Both the City and Applicant share in the responsibility to consider all mitigation measures to solve current and future traffic problems.”

The City and Applicant have shared responsibilities to solve forecasted traffic problems, but do not share in the related expense. As a result, the applicant provides the City free consulting services and possibly new public infrastructure for the privilege of entering the permit process. The City’s only participation at this point is in acceptance or rejection of the Traffic Impact Analysis report: “…the City shall serve as the review and approval authority.” Effectively the policy makes the private sector do the City’s job of managing traffic and empowers the City to do the private sector’s job of determining what is appropriate to develop.

After measuring existing traffic conditions, a traffic model must be prepared that forecasts future background conditions given an assumed growth rate of the City which must be justified by the Applicant, then the model must forecast future conditions adding the impact of the applicant’s development and other projected developments, concluding with a forecast of traffic conditions for the street and intersection system within the prescribed scope of the study (in some cases up to a mile or more away from the proposed development.) If the model determines that levels of service (LOS) measures fall below the grade of “F” (or traffic delays reach more than 50 or 80 seconds), the city, at the discretion of the traffic engineer, may require the development to achieve no traffic impact on the existing infrastructure. This could lead to unlimited mitigation requirements, on-site and off-site, that may potentially affect use, density, scale, building location, and design. The manual mentions: “The TIA report should also identify who or what exactly caused the need for each mitigation measure.” Possible mitigations mentioned in Chapter 15 include the following: Site circulation, on-site parking, shared parking, Traffic Control devices, additional lane capacity (left, right, through, acceleration and deceleration), critical movements, length of storage bays, internal circulation, optimum building locations, implementation schedule, additional traffic control devices, additional capacity at major intersections and additional street capacity

There is no proportionate sharing of mitigation costs between the developer and the City. The City is free to raise the permit cost as high as it pleases or put another way, the city can charge any price for the permit on a project by project basis. The requirement of on-site mitigation gives the City broad authority to dictate private development decisions:

“Following the City’s Completion of the final review, the City will provide to the Analysis engineer and Applicant written objection to the findings or adequacy of the proposed mitigation measures to address impacts.”

The policy also adds an inappropriate political pressure component to the permitting process:

“The Analysis Engineer shall meet with the City Engineer to review probable Community impacts and possible mitigation measures.”

Practitioners of Traffic Impact Analysis often admit the Traffic Study is more art than science because outcomes are easily manipulated by subtle changes in assumptions, statistics, methodologies and measurements. The tool is very subjective and can lead to endless disputes between equally valid outcomes. Unfortunately, this new process grants unprecedented city authority over private property use and artificially caps future development of our city near congested streets.

Within Chapter 15, there is no due process of appeals to City Council or City Planning. The only avenue for appeal is down the hall from the City Engineer to the Director of Public Works, which consolidates the power of choosing winners and losers into one person’s professional judgment. This unprecedented singular power potentially corrupts what could be an accountable, transparent and open system, and such power deserves appropriate and well-defined checks and balances. It allows a single department within the City of Houston to arbitrarily drive development based on a subjective interpretation of an imperfect analytical tool rather than what the consumer in the open marketplace demands.

The threat of a TIA blocking future development also deprives the investment market of predictability by imposing a potential expiration date of property development rights. Potential investors will not be attracted to invest in something that will, at an unknown subsequent point in time, lose all future potential. This, in turn, hurts the tax base as potential tax revenue from new development is lost to surrounding and competing markets.

Chapter 15 is in direct conflict with the goal of attracting density to Urban Transit Corridors, because Light Rail Transit is highly likely to create a LOS of F wherever it is built. Instead of creating an environment in which investors would be attracted to developing properties along Light Rail Transit lines, Chapter 15 imposes an effective freeze on development by forcing development to mitigate all traffic impacts of new development. This will make public transit more of a threat than a benefit, and has created an environment where developers are competing to stay away from public transit rather than create density and growth in congruency with it. The Urban Corridor Ordinance needs to restore an incentive for development by rescuing would be development from this detrimental impact.

The Access Management section of chapter 15 establishes standards that favor through-traffic or mobility at the expense of providing local access or convenience. This application of Freeway logic to City Streets fails to recognize the existing character of our local streets and imposes a competitive disadvantage on all future development which will be required to provide “the minimum number of access connections that can adequately serve all anticipated traffic traveling to the site.”

This detriment is compounded by the additional requirement to mitigate the increased spill back caused by the reduced access. (If you have ever been in a parking lot in another city where you can’t find your way to the street by driving towards it, you have experienced the impact of this policy on local access.) Under this new policy larger properties face disproportionate restrictions on access, regardless of actual public convenience or the “normal use” that has existed in Houston for decades. This creates an unlevel playing field between old and new development.

Solutions

  1. Amend the pending Urban Corridor ordinance to filter out the application of Chapter 15 to development in the Urban Corridor. The elimination of the regulatory requirements triggered by the Level of Service “F” within the Urban Corridors would be of great benefit to both the City of Houston and the health of its tax base. It would eliminate a destructive disincentive for developers to invest along Light Rail Transit lines. This would bring economic growth and subsequent tax revenues to the city and restore a mutually prosperous, symbiotic relationship between public policy and private investment in Houston’s future affordability.
  2. Limit mitigation and permit costs and expensive requirements to a set of defined off-site options proportionate to the size of the development. On-site mitigation, the power to meddle with the design of private development, should be eliminated. The City should stay on its side of the property line and avoid regulatory takings. The act of taking through regulation value that would have to be condemned and purchased if the property was not in the permit line is not a good way to compete with rival markets for new development and healthy growth in the tax base. Avoid temptations to leverage the City’s authority to grant permits to extract involuntary economic concessions from investors in our City’s growth. The City should participate in paying the cost of both the TIA and the resulting mitigation expense in proportion to its public benefit. City participation in paying the expense will also help avoid the temptation to recklessly spend other people’s money.
  3. Restore predictability to the permit process by eliminating the unlimited discretion that now rests only with Public Works. The investment market needs to be assured there will be no fatal surprises and that the permit process can be completed without having to win special favors or popularity contests. Restore the historic confidence that private property in Houston is free to find its own highest and best use as appropriately judged by acceptance in the free and open marketplace. Avoid the mistakes other Cities have made by over regulating their development markets. We are the City that “Got it Right when it comes to growth and prosperity.” Let’s not wreck it with destructive new far reaching regulations.
  4. Establish a more legitimate due process of appeals to City Planning and City Council to establish a presence of public voice in the process.
  5. Maintain existing Access Management Standards so new development can compete with same access afforded to existing development.

Houston has traditionally benefitted from an open, permissive and predictable permit system free of favoritism or political pressure. This market based system has produced affordability which is a benefit to all citizens and a crucial competitive advantage that we should protect. Investors will be less willing to participate in a market where the rules have restricted or capped the values of properties. As new entrants are excluded by new artificial barriers to entry, prices will rise due to rising regulatory costs and reduced competition hurting consumers as additional costs are passed onto them. In time, new development will be capped in more and more locations across our city as more intersections LOS measures reach level “F.” We will run the significant risk that only those with the right connections and insider influence will be granted the increasingly lucrative access to the development market through favored discretionary “approval of any deterioration beyond the background conditions.”