Lakeway shifts view protection discussion to committee

“There are some internal issues with the VPCO that make it difficult to administer, or more importantly, answer questions about how it is controlled and derived,” City Manager Joseph Molis said at the meeting.

According to the staff report, the issue with the ordinance is that certain measures are subjective, such as what counts as an “unreasonably obstructed” view in the case of a new development. Meanwhile, the rules for additions specify that lake views cannot be unreasonably obstructed.

Per ZAPCO’s recommendation, rather than voting to repeal the ordinance, City Council voted to create a subcommittee to review the VPCO and deliver quarterly reports to council on progress. The VPCO ordinance will remain in effect until ordinance updates are made, which prompted Mayor Tom Kilgore to be the sole vote against the item.

“For the record, I will be opposing it for that very one principle because I think it creates unnecessary litigation risk for the parties I have already mentioned,” Kilgore said.

Kilgore said the ordinance, as it currently stands, is unconstitutional and must either be repealed or no longer enforced to prevent legal risks. The unconstitutionality partially stems from the vagueness of the ordinance and the fact that "view" is not considered a protected property right, among other things, according to documents submitted by Kilgore. He advocated for the creation of a committee to address the issue but to suspend the ordinance while those committee discussions happened.

When it came to opening the city up to legal liability, Kilgore asked City Attorney Cobby Caputo if it was a greater risk to keep enforcing the current ordinance or to suspend the rule.

“It depends on how many of these cases are waiting out there, and how long this process will take. You’re at risk every time one of these [cases] comes up, and we’ve been in that situation for years,” Caputo said.

Since its establishment in 2011, the VPCO has generated 305 view blocking cases that required investigation—of those, only 12, or 3.9%, found view blocking to be an issue, according to city documents.

“In 2012, we had 44 view blocking cases, and all through that time ... last year we had eight,” Mayor Pro Tem Louis Mastrangelo said. “So to me, the risk is there, but it’s minimal. It’s a lot less than what it would have been 13, 14 years ago, so I’m not concerned. For four or five months, not having it—it’s suddenly now risky when it’s less than a quarter of what it was in volume?”

What they’re saying

Of the 20 speakers who signed up, each spoke against repealing the VPCO, citing concerns about how their homes, views and property values might be impacted.

“I’m here tonight to oppose the repeal because if you repeal it without replacing it with something or modifying it, then the whole character of Lakeway goes away—and we know that if you take that away, you can never get it back,” former Lakeway City Council member Jean Hennagin said.

Lakeway resident Logan Brown, who also filed for the May City Council election, advocated for “refinement, not repeal” at the meeting.

“We should not keep an ordinance on the books that is constitutionally vulnerable,” Brown said. “Right now height, among other things, has subjective criteria for determination, which I agree creates uncertainty for property owners and potential litigation risk.”

What’s next

Per the approved motion, council will consider the subcommittee at the March regular council meeting, slated for March 16. The committee will include:

• Two members of City Council
• Two members of ZAPCO
• Seven members of the city, each nominated by a member of the council, with the mayor’s nomination as the chair