Developing Stories: Counting Cars and Fears

Who sets public policy in Austin? Will our elected representatives – the mayor and City Council members – stand up for their convictions about the community's best interests when the going gets tough? As the saga of the contested redevelopment of Northcross Mall has unfolded over the past year, it has illuminated the inner workings of city government. Ultimately, the question of who runs the city, and how, is of broader significance than whether one Wal-Mart Supercenter – however reviled – gets built on Anderson Lane. Northcross serves as a troubling example of how council policy can get derailed or usurped by city staff – the city manager and her assistant CMs, the city legal department, even traffic engineers. Is too much power concentrated in the office of the city manager, which has nearly absolute domain over city staff?

In Austin, who directs whom?

These questions have been brought into sharp focus again by the revised traffic-impact analysis submitted to the city May 17 for Lincoln Property Co.'s proposed redevelopment of Northcross Mall. The new TIA was requested by the city because the prior traffic forecasts appeared unrealistic; the project now faces a June 21 permitting deadline. Project opponents such as the multineighborhood Responsible Growth for Northcross had hoped that the revised traffic projections would "demonstrate that a proposed development may overburden the city's street system" or that it "endangers the public safety." Those criteria for denying a site plan application, set out in the Land Development Code, have historically been interpreted by staff to mean an intersection failure, according to Watershed Protection and Development Review Department Director Victoria Hsu. However, the latest TIA prepared by HDR|WHM professional consulting firm – the developer's consultant – once again forecast no failed intersection.

Barely avoiding failure was the major intersection at Burnet Road and Anderson Lane, at the northeast corner of the Northcross site. Intersection forecasts are based on trip-generation estimates from formulas based on store square footage. By the traffic consultant's computer program, the intersection earned a "D" – rather than a failing "E" or "F" – in the TIA forecast. And while a "D" on a report card gets most kids grounded, for urban traffic a "D" turns out to be A-OK by the standards of the city of Austin.

Just prior to releasing new TIA numbers, Lincoln and Wal-Mart Realty announced that the size of the supercenter had been reduced from 219,000 to 186,500 square feet. While Wal-Mart suggested in a letter to the city that the change was motivated by "being a good corporate citizen to local communities," it's fair to question whether the tweak was calculated to bring the traffic counts just out of the failure zone on the TIA. The still-huge size doesn't correspond to community preferences expressed (e.g., for a grocery-only store, less than 100,000 square feet). It appears calculated to accomplish not real community satisfaction but, rather, a skirting of city powers and policy. By avoiding intersection failure, Lincoln avoids having to submit a new site plan; sticking to the second site plan already on file allows Lincoln and Wal-Mart to continue noncompliance with community will and council policy – that is, the city's newly effective design standards and Big Box Ordinance.

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Policy ... What Policy?

By sliding a second site plan in just ahead of the ordinance's applicability (quite calculatingly), Lincoln and Wal-Mart thumbed their corporate noses at council policy and the community will behind them. Said Brewster McCracken, "It's likely they've successfully gamed the system. That's infuriating. Lincoln just refused to participate. I've never seen conduct like that before from any company that wants to continue to do business in Austin." Because of their flouting of council policy and community will, said McCracken, "They're not long-term players. It's up to council to remember that."

But why let them get away with it even now?

The official explanation for why council has failed to assert its policy will at Northcross is that it "lacks the authority" to act. Council members repeatedly have been told that they lack authority to intercede – warned off by city management, the city attorney, and outside counsel Casey Dobson. If council members act outside their authority, it could trigger a lawsuit against the city. (Some council members also feared being sued personally, an unfounded but intimidating specter suggested by city staff.) Certainly, adhering to a standard process is essential for fairness and equity in development reviews. No one wants council stepping in to overturn site-plan approvals on the basis of favoritism, developer influence, or complaints by special-interest groups. But a huge public outcry by citizens is another matter.

The entire exercise of trying to pin this development's denial on "objective" forecast data for a single intersection is, in truth, a dismal embarrassment. The reasons that Lincoln's plan for Northcross is a bad idea – a poor land use for the city and detestable to community members – are far broader and more complex than traffic concerns, legitimate as those may be. A thoughtful determination on such a large-scaled inner-city redevelopment requires the intelligent evaluation of numerous interlocking and complex factors – a higher judgment call. That's the kind of decision that rightly should be made by City Council, after the project has been vetted by the Planning Commission and an open public dialogue – not left to a computer formula run by a traffic engineer.

"We have a huge problem in letting engineers set public policy in this community," said McCracken. "We need a Public Works Department carrying out the public policy set by council. Public Works should not violate council policy." McCracken noted that the city is hiring a new director of Public Works, which could be an opportunity for positive change.

Said Council Member Jennifer Kim by e-mail, "I believe we have a serious issue with how we allow applicants to calculate traffic impact analyses (TIAs) for large buildings. First I would like staff to calculate a new TIA for the Northcross Redevelopment on the basis of the August 2006 ITE Journal. RG4N is assuming if these numbers are used, the intersections will fail. We don't know that for a fact so we need staff to do the calculation to make sure. If the numbers prove that the intersections will indeed fail, Wal-Mart needs to be honest about this and determine if they still belong there."

She added, "Given pressure from Wall Street on Wal-Mart to abandon plans for much of their new stores, they should understand that we're in this for the long haul, and it may be better for them to just walk away from this project." The world's biggest retailer announced last Friday a change in its business strategy: It will reduce the number of new supercenters it opens by 25% for the coming fiscal year, with further cuts over the next three years. A Wal-Mart spokeswoman had told me she was "researching" whether the Northcross supercenter is on the list of potential cuts, but on Tuesday the Statesman reported that the company is "working on the same timetable as before, [and] there's been no discussion of not moving forward as planned [on Northcross]."

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Endangering Public Safety

City managers, attorneys, and staff continue to assert that the city's administrative process for site-plan approval absolutely cannot allow for intelligent intervention and discretionary judgment – even in such an exceptional case. Meanwhile, council members have let themselves be benched on the sidelines (happily enough in some cases, angrily in others) rather than assert the authority granted them under Section 25-6-141 of the Land Development Code, according to RG4N attorney Brad Rockwell.

Casey Dobson, the city's outside counsel, explains that the code doesn't really mean what it appears to say. The relevant section, which addresses the approval process relevant to TIAs, states, "The Council or Director shall deny an application if the traffic impact analysis or neighborhood traffic analysis demonstrates that … (2) The project endangers the public safety." That broad provision, on its face, grants clear discretionary authority to the council, but Dobson asserts a contrary interpretation: Council has such authority only for zoning cases, while the director of Watershed Protection and Development Review has sole authority for administrative cases, such as Northcross. Asked why the code doesn't actually state this division of authority, Dobson responded, "Because some damn lawyer wrote it!"

Rockwell: "That's a creative way of looking at the code, to favor an interpretation that allows Wal-Mart to build the supercenter and to take the City Council out of the decision-making process. That's been the problem all along. Staff has bent over backward to find ways to interpret the code to keep the decision away from the City Council members."

What if Rockwell's interpretation is correct? (He cited three recent cases in which his legal interpretations had been supported by judges and city's legal interpretations had been found wrong.) Council Member Sheryl Cole said: "If we have the authority, that would change everything dramatically. I was the sponsor of the Big Box Ordinance, so you know I'd love to deny [the Northcross site plan]. If we could deny it on the traffic impact, yes I would!" Echoed McCracken, "If we have that authority, we should exercise it." Kim expressed similar sentiments.

As for council members' personal liability, Rockwell has given the mayor and council a 2000 Texas attorney general opinion that clarifies the right of City Council members to a legal defense by the city when acting in their official capacity – which includes interpreting code, even if their interpretation should later prove to be flawed. He added, "Wal-Mart is not going to sue people individually; it's just kind of this bogeyman, and the idea that they would be subjected to an individual lawsuit is just kind of goofy."

McCracken said recently that all council members recognized early on that Lincoln's plans constituted a poor land use that willfully skirted their policy intent: "It's clearly a wildly inappropriate development for that intersection." Yet because council has not agreed on the appropriate response, said McCracken, they have lacked the unity required to assert their policies. From McCracken's perspective, the internal divisiveness over Northcross has been so great that it has strained council members' ability to work effectively together on other issues as well. Certainly it's understandable that a bruised council prefers not to do itself further relationship damage. Yet community outcry over Northcross has not gone away, nor has council's duty to implement its policies in the community's best interests.

Dobson stated that under his interpretation, WPDR Director Victoria Hsu clearly does have the authority to deny the Northcross site-plan application on the policy grounds of endangering the public safety. Hsu, in her position for just a year, said she's interested in learning whether any prior director has ever used the public-safety provision in reviewing or denying a site plan. Noted Rockwell, "That's not an engineering decision; it's a public policy decision, balancing all of the many factors the city has to deal with." RG4N has pointed to potential delays in EMS and Austin Fire Department response times at the congested intersection. Rockwell also notes that Austin is under federal mandates to reduce its ozone levels, which endanger public health and are increased by congested traffic.

Will Hsu step up and deny the site plan? That would require the department director to demonstrate more moral courage (and job bravery) than City Council has yet summoned. But it's possible. Attorney Mark Perlmutter, who successfully sued the city on behalf of the Heritage Neighborhood Association in the Buckingham Square case, notes of Hsu: "She made a fair and reasonable ruling, ultimately, similar to what the court decided. … Unfortunately, Victoria was overruled by [City Attorney] Marty Terry and [Assistant City Manager] Laura Huffman." That bit of bad advice from city legal and city management cost the city more than $10,000 in attorney fees and court costs and much community goodwill; McCracken calls it "an embarrassment."

Based on her preliminary review of the new TIA, Hsu didn't believe it would provide her staff with grounds to deny the application. But she added that she remains very open to additional data. "If a citizen's group had a second opinion or a different traffic study that showed an intersection failure, we would definitely look at that," she said. Staff is still reviewing the TIA and may not issue a final decision until closer to the June 21 deadline. "You can be reassured that we are looking at it so closely!" said Hsu.

Asked what would happen should she use the code's public-safety provision to make an executive decision and deny the Northcross site plan, Hsu shared the same bogeyman fear expressed by council members: "The applicant would sue me!" (In fact, says Rockwell, the code's appeal provisions prevent this.) But then she added, "Of course, if I don't deny it, the neighborhoods could sue me, too."